Why the Supreme Court Avoided Using Traditional Tools of Statutory Interpretation in West Virginia v. EPA, by Rachel Rothschild
Debates and scholarship over what the major questions doctrine is—and what it will mean for administrative law—have proliferated since the Supreme Court’s decisions in Alabama Realtors v. HHS, NFIB v. OSHA, and West Virginia v. EPA. The Association of American Law Schools (AALS) annual meeting last week was no exception, with multiple panels on the major questions doctrine. These included the Federalist Society’s annual faculty debate, moderated by my colleague Chris Walker. That conversation focused on whether the major questions doctrine is consistent with traditional tools of statutory interpretation and how the doctrine relates to constitutional values like the separation of powers and nondelegation, particularly in the West Virginia v. EPA case.
Yet none of the participants in these discussions paused to ask why the court might have chosen not to use traditional statutory interpretation tools to reach the same outcome. This has been an ongoing gap in conversations about West Virginia v. EPA since last summer, including among those who are critical of the decision and those who think the right outcome was reached but with the wrong analysis.
Answering this question is important. It is necessary to understand whether the doctrine—at least as the Supreme Court has thus far explained it—can possibly be squared with precedents like Chevron. It is also crucial for assessing how the doctrine might be deployed in future environmental and administrative law cases. So while I have many disagreements with the majority over how it ruled in this case and the arguments for a major questions doctrine more broadly, I will bite my tongue on these topics to simply address what may have been the court’s underlying motivation.
The majority’s decision to invoke the major questions doctrine, rather than use traditional tools of statutory interpretation, allowed the Justices to invalidate the Clean Power Plan without reviving federal nuisance lawsuits against fossil fuel companies—an outcome the court surely did not want. It’s difficult to know, of course, precisely what was in the minds of the Justices who signed onto the majority opinion. But this piece will explain why that result would have otherwise occurred and suggest how it may have influenced the majority’s use of the major questions doctrine.
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