West Virginia v. Environmental Protection Agency has received relatively little attention beyond legal circles, ElizKolbert writes, but its potential ramifications are profound.
to overturn the results of the 2020 election.) Several invoke what’s become known as the “major questions” doctrine, which is popular among conservative jurists, including, notably, Justices Brett Kavanaugh and Neil Gorsuch. “It is difficult to imagine a better illustration of the need for the major questions doctrine than this case,” a brief filed by America’s Power, a group that formerly called itself the American Coalition for Clean Coal Electricity, states.
According to the major-questions doctrine, an agency can issue a regulation that would have significant political or economic ramifications only if it has explicit instructions from Congress to do so. Major questions is a challenge to the prevailing approach, known as the Chevron doctrine, which is named after a case—Chevron U.S.A., Inc. v. Natural Resources Defense Council—that was decided by the Supreme Court in 1984.
The Chevron doctrine is critical to government regulation as we know it: often, federal rules are written in response to broad directives from Congress to, say, protect air quality or worker safety. The Biden Administration’s mandate that companies with a hundred or more employees require workers to beor tested weekly, for instance, relies on the Occupational Safety and Health Act of 1970. For obvious reasons, the act never mentioned.
“The whole model of the New Deal state is that Congress passes laws that delegate to administrative agencies sweeping regulatory power to address the public health and welfare of the American people,” Richard Lazarus, a professor at Harvard Law School, explained. “And they don’t lay out the details, because they couldn’t possibly do that.” These days, of course, Congress is barely even able to pass laws. It hasn’t approved a significant piece of environmental legislation since 1990.
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