Interim Dean Stuart Shapiro discusses West Virginia v. EPA on FedScoop podcast

July 26, 2022

Professor and Interim Dean Stuart Shapiro was a guest expert on the latest FedScoop podcast from Gov Actually (Episode 57) titled “The Supreme Court’s Impact on Federal Regulations,” on July 21, 2022.

In this episode, hosts Dan Tangherlini and Danny Werfel explored the ramifications of West Virginia v. Environmental Protection Agency (EPA) when SCOTUS voted 6-3 in late June to limit the EPA’s ability to reduce the carbon output of existing power plants, an important factor in combating climate change. Dean Shapiro weighed in on the impact of this decision.

Regulations affect many facets of our lives, from clean water to seatbelts. Congress sets the general rules, not having the technical knowhow nor time to be burdened with specific decisions. This gives regulatory agencies, such as the EPA, the power to set the minutia and make policy decisions around regulations that will impact businesses. Of course, some businesses are not happy with these regulations, which led to this latest decision by the Supreme Court.

The Clean Power Plan policy, originally proposed by the Obama administration in 2015, would have significantly reduced carbon emissions by emphasizing a switch to clean energy sources by 2030. It was repealed by the Trump administration in 2017. In 2019, the EPA announced a new way to calculate health risks of air pollution under the Affordable Clean Energy rule. However on the last full day of the Trump administration, the DC Circuit Court of Appeals rejected the Affordable Clean Energy rule. In response, West Virginia sued the EPA for the original Clean Power Plan (which was never enacted), which is what the Supreme Court ruled on.

Based on the Supreme Court decision, the podcast focused on a new idea that argued that agencies cannot address “major questions” on their own because that is the role of Congress. Through the Clean Power Plan, the EPA wanted to significantly restructure the energy sector, which was seen as a “major question.” This is different from their historical role of regulating, say, emissions levels.

Professor Shapiro explained that, in the last decade, Congress has dealt less with these major questions than previously, citing the Affordable Care Act and Dodd-Frank Act as the last major reforms of this nature. Even with the Congressional Review Act, which enables Congress to overturn rules issued by federal agencies, getting 50 Senate votes to back a regulation can prove difficult.

The Supreme Court decision has the potential to impact other regulatory decisions. As Professor Shapiro pointed out, now agencies must ask, “Is this a major question?” and determine how to make sure regulations do not fall into the “major question” category. He believes that agencies are already risk-averse and will therefore need to take extra steps to enact regulations going forward.

The “major question” doctrine has existed in law review and academic circles for a few years. It stems from the non-delegation doctrine, not used since the 1930s. This principle states that Congress cannot delegate its legislative powers to other entities, typically administrative agencies or private organizations. But the Ohio v. Occupational Safety and Health Administration (OSHA) case in January 2022 which stayed the “vaccine or test” rule for COVID, brought the term back into the spotlight.

Turning the discussion toward the future, Professor Shapiro believes the OSHA case proves that these new limitations will not be limited to the EPA or power cases. Every agency should be thinking about it. New challenges that don’t fit into previous decisions, such as climate change or COVID, could be impacted.

Professor Shapiro also pointed out a twist in that more conservative politicians and constituents often want less regulation unless it revolves around a personal hot button issue, such as immigration or corporate behavior. Regardless, the hosts and Professor Shapiro all agree that more litigation will result from this recent decision.

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