The Real Target of the Supreme Court’s EPA Decision

In yet another major blow to democratic constitutionalism, the Supreme Court ruled in West Virginia v. EPA that the Clean Air Act does not give EPA authority to regulate the power grid as a whole. Taking its cue from then-Judge Brett Kavanaugh, the court has explained that Congress must very clearly delegate to agencies the authority to decide matters of “vast economic and political significance.” Major questions reared its head again in the shadow docket over the past couple of years to limit the federal government’s response to COVID-19. Chief Justice John Roberts makes no serious effort to defend his assertion that EPA exercised a “power beyond what Congress could reasonably be understood to have granted.” Congress, in fact, designed the Clean Air Act to be an economically transformative statute that would force the development of new technologies to address air pollution. Roberts’ response boils down to his intuitive judgment that EPA’s action “raises an eyebrow.” Despite the crystal-clear textual authority, he maintains that Congress could not possibly have meant EPA to address such a comprehensive kind of “system.” But the court has also fashioned a new rule that agency actions that don’t have exact historical precedents are suspect.