The fragility of state regulation after West Virginia v. EPA

In West Virginia v. EPA, the Supreme Court limited the Environmental Protection Agency’s (EPA) authority to regulate carbon dioxide emissions from power plants, dealing a significant blow to the agency’s ability to address climate change. The court held that the EPA’s interpretation of Section 111 of the Clean Air Act presented an “extraordinary case” because of the significance of the power the agency claimed. The court concluded that the EPA lacked the statutory authority it asserted.

In reaching its conclusion, the court relied on the controversial “major questions doctrine.” The major questions doctrine is a relatively new interpretative maxim that directs courts to presume that Congress does not intend to vest agencies with policymaking authority over questions of great economic and political significance. Only Congress’s “clear statement” that it did intend to confer the claimed authority can overcome this presumption. When a court employs this maxim, it reads statutes narrowly, stripping the agency of the power to address the major question that the statute, on its face, gives the agency the authority to address.

Unsurprisingly, the main focus of the media, scholars and the public is on the consequences of the court’s move for the size and contours of the federal administrative state. Will federal agencies be able to ensure the safety of food, drugs and drinking water? Will they be nimble enough to cope with emergent health issues, like the ever-changing challenge posed by COVID-19? In an era of persistent congressional gridlock, the blow to agency authority precipitated by West Virginia v. EPA calls into question whether federal agencies can continue to do, often invisibly, the work that the American people have come to expect of them.

The impact of the court’s ruling on federal agency authority and power cannot be overstated. But an equally important consequence, albeit one that has received far less attention, is the transformative effect the ruling could have on state regulatory programs. Because state regulatory authority is often tethered to standards created by Congress or federal agencies, the diminution of federal regulatory authority promises to destabilize state regulation as well. Countless state regulatory programs can be considered fragile because they regulate by incorporating federal statutes or regulations into state law. If these federal schemes are read exceedingly narrowly, as the court’s opinion heralds, then the state regulatory programs tied to them will be imperiled as well.

Consider the relationship between state regulatory programs and Section 111 of the Clean Air Act, the provision read narrowly in West Virginia v. EPA. An examination of state air quality standards reveals that most states specifically incorporate by reference parts of Section 111 into their own statutes and regulations. Some states incorporate federal law directly, providing that the EPA’s Section 111 determinations are part of state law. Other states incorporate the EPA’s Section 111 determinations as a benchmark for state law, providing that state air quality standards may not be less stringent than those promulgated by the EPA. Still other states require their environmental agencies to promulgate rules similar to federal standards made pursuant to Section 111. And some states even provide that related state regulation is no longer effective if federal rules made pursuant to Section 111 are invalidated.

Because so many state statutes and regulations depend on the validity of Section 111 and the regulations promulgated under it, the court’s opinion in West Virginia v. EPA not only drastically limits federal authority, it also has the effect of imperiling the many state regulatory programs that depend on federal standards for their existence.

And, of course, Section 111 is just an example. Countless state regulatory programs are tethered to federally created standards, ranging in subject matter from food and drugs to banking to labor, among many others.

As a result, the court’s opinion strengthening the major questions doctrine threatens to leave numerous fields underregulated not only at the federal level, but also at the state level.

Evan C. Zoldan is a professor of law at the University Toledo College of Law, where he researches and teaches legislation and administrative law. Follow him on Twitter: @eczoldan.