In deciding West Virginia v. EPA last term, the Supreme Court invoked a rarely used concept called the “major questions doctrine.” This holds that when an administrative agency claims authority to issue a far-reaching or unprecedented new rule, it must be able to show that Congress specifically…
West Virginia v. EPA
The facts of the case provide some guidance for how far agencies can stray from the authority they receive from Congress. Over time, the EPA has been authorized to limit air pollution as well as the release of carbon dioxide and other so-called greenhouse gases that some scientists believe can create unwanted climate change. However, the EPA used this authority to issue regulations that would completely change the structure of the private power industry.
So in the EPA’s “Clean Power Plan” rule, as the Supreme Court’s decision described it, the operator of a coal plant could choose one of two options: either to reduce its own production and sell a credit to others whose production has increased as a result or to “build a new natural gas plant, wind farm, or solar installation, or invest in someone else’s existing facility, and then increase generation there.
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