Red states are mounting a pre-emptive strike against President Joe Biden’s climate agenda, arguing that climate change is, in essence, too big an issue for any president to tackle without explicit direction from Congress.

These Republican-led, mostly fossil fuel-producing states are invoking the “major questions doctrine,” a judicial principle that was seldom used until recently, but which has adherents among the Trump-appointed jurists who now are hearing the challenges to Biden’s authority.

In oral arguments before the Supreme Court on Monday, West Virginia will argue on behalf of 20 states, with support from the coal industry, that the Environmental Protection Agency should be blocked from regulating greenhouse gas emissions from power plants under the major questions doctrine. The case is unusual because the Biden EPA hasn’t proposed any such regulations yet. Even companies that run power plants say that West Virginia and its co-litigants have gone too far, and they will argue in support of the Biden administration.

But the case has been crafted to appeal especially to “major questions” proponents like Associate Justices Neil Gorsuch and Brett Kavanaugh. And the fact that the Supreme Court agreed to hear it at such an early stage signals some openness to the argument that EPA regulation of power plants under the Clean Air Act would constitute “an enormous and transformative expansion [of its] regulatory authority” without Congress’ say-so.

Meanwhile, in a “major questions” case brought by Louisiana, a Trump-appointed federal judge has thrown a roadblock in the way of a vast array of Biden initiatives on climate, including EPA rules and other decisions, and even the State Department’s negotiations with Canada and other nations to harmonize international action on climate. 

In a court filing last week, the Justice Department indicated that a staggering amount of federal government activity is on hold in the wake of U.S. Judge James Cain’s Feb. 11 injunction against the use of the Biden administration’s “social cost of carbon” calculation, a method for accounting for the cost of greenhouse gas emissions.  The Justice Department, seeking a stay of the order, wrote that it was “aware of no precedent for such judicial micromanagement of Executive Branch policymaking.”

The red states’ legal strategy, if effective, will put Biden in a double bind, preventing him from acting on climate without explicit instructions from Congress—a Congress that happens to be in an intractable deadlock over climate. And the ramifications could reach far beyond climate, giving industry and state foes of regulation a new avenue to challenge virtually any major federal rule on the basis that it goes beyond what Congress envisioned.

Already, a small business coalition succeeded in persuading the Supreme Court to block the Biden administration’s workplace Covid vaccine mandate using the same legal doctrine.

“They’re not just trying to undermine EPA’s authority to address climate pollution from existing coal plants,” said Vickie Patton, general counsel of the Environmental Defense Fund. “They are trying to damage other important programs and agencies that are designed to protect Americans from all sorts of harm, including that we have food that is safe to eat, water that’s safe to drink, and air that is safe to breathe.

“The safeguards that save lives are really under threat from the legal questions that the coal industry has put before the Supreme Court,” Patton said.

The red states would agree that they are seeking to have broad impact. “I think this case is really important,” West Virginia Attorney General Patrick Morrissey said last week in an appearance at the National Press Club. “You get to set better guideposts in terms of how federal agencies are going to act based upon a principle that when you have a major question of the day, you better get it right, both for purposes of not intruding not only on Congressional authority, but on the states’ authority.”

Before Climate, Cigarettes and Smokeless Tobacco

Legal doctrines, sometimes called “judge-made rules,” are simply the standards that courts develop over time to reason their decisions, and hopefully apply them with some consistency. The major questions doctrine evolved out of the tug-of-war in the courts over how much leeway federal agencies should have in interpreting the law, especially as the government has been forced to address ever-more-complex societal issues without any action from Congress.

To rein in the Biden administration on climate, the red states are hearkening back to the Supreme Court’s reasoning in its 2000 decision blocking a bid by the Clinton administration’s Food and Drug Administration to regulate cigarettes and smokeless tobacco. The FDA said cigarettes were “drug-delivery systems” within the broad regulatory mandate Congress gave the agency under the Food, Drug, and Cosmetic Act. But Justice Sandra Day O’Connor, writing for a  5-4 court, disagreed, articulating what has come to be known as the major questions doctrine. “We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion,” she wrote.

Ironically, O’Connor laid out the “major questions” approach drawing in part on past legal writing by her colleague on the court, Justice Stephen Breyer—who vociferously disagreed with her decision on the FDA and tobacco. In his dissenting opinion, Breyer argued that the court could not interpret Congress’ silence on the mounting evidence of tobacco and nicotine harms as a mandate for government inaction. He said the government had authority to act under FDA law, and far from being an undemocratic exercise of power, as the tobacco industry portrayed it, it was a decision for which the administration would be held accountable by the voters. “Presidents, just like Members of Congress, are elected by the public,” Breyer wrote. “Indeed, the President and Vice President are the only public officials whom the entire Nation elects.”

The fact that O’Connor and Breyer could come to opposite conclusions in the close FDA tobacco case shows how subjective the major questions doctrine can be, and how difficult it is to apply consistently, in the view of many legal scholars. “A ‘major question,’ after all, is in the eye of the beholder,” wrote lawyers for the Obama administration Federal Communications Commission in a 2011 law review article.

And in fact, the major questions doctrine was seldom used by litigants in the years following the FDA case. Instead, the most important doctrine governing cases about federal agency authority for years has been the so-called Chevron doctrine. In a 1984 case involving the oil company, the Supreme Court said that when Congress had not spoken directly to the precise issue in question, judges should give deference to federal agencies as long as their interpretation of the law was “reasonable.”

Foes of federal regulation have chafed at the deference accorded agency under the Chevron doctrine for years, and discarding it has been a cause célèbre for the Federalist Society, a group of right-wing legal scholars that have been devoted to remaking the federal courts as a conservative stronghold. President Donald Trump drew almost exclusively on Federalist Society-endorsed candidates for the 229 appointments he made to the federal courts during his term, including the three members of the Supreme Court he named.

And Trump-appointed jurists have made clear their inclination is to give less leeway to federal agencies by invoking the major questions doctrine.  Trump’s first Supreme Court pick, Gorsuch—whose mother served as the deregulation-focused administrator of a scandal-ridden EPA under President Ronald Reagan—once wrote that the Chevron standard “certainly seems to have added prodigious new powers to an already titanic administrative state.”

And Gorsuch had a chance to articulate why he thinks the major questions doctrine is a more appropriate standard to apply to agencies in the court’s January decision striking down the Biden administration’s workplace vaccine mandate. In a separate concurring opinion, joined by Justices Samuel Alito and Clarence Thomas, Gorsuch wrote that the major questions doctrine “ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” 

Kavanaugh, Trump’s second Supreme Court pick, showed his willingness to apply the major questions doctrine specifically to EPA’s authority to regulate greenhouse gases when he was on the federal appeals court for the D.C. Circuit. During oral arguments over Obama’s now-defunct Clean Power Plan, Kavanaugh remarked as he grilled the lawyers: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance,” he said.

But no final court decision ever was made on Obama’s Clean Power Plan, which was repealed by Trump. Now, West Virginia and the coal industry are asking the Supreme Court court to weigh in on the major questions doctrine argument before Biden’s EPA has a chance to write its own regulations curbing carbon emissions from power plants.

Massachusetts vs. EPA

Even close watchers of climate policy may be confused that the issue of EPA regulation of greenhouse gas is before the Supreme Court again, since the Court ruled forcefully in its landmark 2007 Massachusetts vs. EPA decision that greenhouse gases are pollutants under the Clean Air Act, and EPA has a mandate to regulate them if it finds they endanger public health or welfare. The Obama EPA made such a finding in 2009 that still stands.

West Virginia and the coal industry are not challenging that finding, nor are they seeking to overturn Massachusetts vs. EPA, Morrissey said in his press club appearance last week.

“We have conceded that they do have a limited authority to regulate,” said Morrissey.  The case, he said, is not about whether the EPA can regulate power plants, but how. In essence, the red states and coal industry argue the Clean Air Act doesn’t give the EPA authority to make the kind of system-wide cuts that would lead to large carbon emissions reductions from the power sector.

“We’ve put all of our energy on a basic premise,” said Morrissey. “If there’s a major question of the day, regardless of where you stand on the issue of climate change or the vaccine mandate, or whatever the issue may be, don’t you think that Congress needs to provide a clear statement to the agency before it acts? That’s what the case is all about.”

But the Biden EPA, supported by environmentalists and public health groups, 23 states, eight cities, a wide array of U.S. businesses, from the tech sector to the power sector, argue that West Virginia’s case doesn’t even belong in court, because there is no power plant regulation in place to rule on. The only thing that the Supreme Court could do at this stage is to issue an advisory opinion—telling the EPA in advance what it can and can’t do. And the Supreme Court has taken the position since the days of Thomas Jefferson (who unsuccessfully sought advisory opinions from the high court) that advisory opinions—although part of jurisprudence in England’s common law—were not permitted under the U.S. Constitution.

“This has been clear, literally since the beginning of the Republic,” said Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law. And Revesz said Morrissey’s remarks that West Virginia is looking for “guideposts” from the court show clearly that he is asking the court for an advisory opinion. 

Revesz has argued that the Supreme Court should do what it has done in roughly two cases every term, dismiss the case as “improvidently granted.”  Along the same lines, the court could conclude that West Virginia and the other litigants lack standing to sue, which the high court has done in some cases even after hearing oral arguments.

Consolidated Edison, Exelon, Pacific Gas & Electric, and other power companies with customers in 49 states—all companies that have already made investments in clean energy— will share oral argument time in support of the Biden EPA. In their brief, the companies said the Court should reject the request by West Virginia and the other states for an advisory opinion “about whether speculative abuses of power by an imagined future EPA Administrator would fall within the powers Congress lawfully granted to the agency.”

If the Supreme Court were to rule in favor of West Virginia, environmental advocates fear it will mark the beginning of a new era of judicial skepticism over the role of federal agencies in American life. In the view of some, it will mark a return to the pre-New Deal era, when the Supreme Court notoriously resisted progressive reforms.

“The ability of the federal government and even state and local governments to regulate the economy to provide for public health and safety was really limited,” said Andres Restrepo, senior attorney with the Sierra Club. The court of that time “took a maximally expansive view of economic liberty and the ability of companies and corporations to pretty much do things as they saw fit.”

Although the court at first resisted many of the programs of President Franklin Delano Roosevelt, it was during his era that jurisprudence changed, as federal agencies played a leading role in recovery from the Great Depression. Since that time, said Restrepo, “There was this understanding that the federal government needs to have the tools to be able to carry out laws that Congress passes, in a way that responds to changing circumstances, and deals with problems as they come up.”

Social Cost of Carbon

Foes of federal climate regulation are invoking the major questions doctrine in cases far more esoteric than the power plant case. The most significant ruling came early this month challenging the accounting method that the Biden administration had adopted to assess the potential costs and benefits of its climate decision-making. 

Early in his presidency, Biden’s White House directed  federal agencies to use a figure of about $52 per ton of carbon to reflect the societal costs of greenhouse gas pollution. The move returned to the metric used during the Obama administration and was based on work by the National Academies of Science and others. Putting a dollar value on carbon allows the administration to weigh whether the costs of steps taken to cut carbon emissions are worthwhile in terms of lives saved, better health, preservation of coasts and forests, agricultural productivity and property.

Louisiana led 10 other states in filing suit to block use of the Biden administration’s social cost of carbon calculation, arguing it “will remake our federalism balance of power, American life, and the American economy” and “will ensure the most pervasive regulation in American history.” 

Since the social cost of carbon is not a regulation, but a tool to be used in regulation, the Louisiana case is highly unusual. The law governing federal agencies, the Administrative Procedure Act, says that legal challenges are permitted only after regulations are finalized. Since the Biden policy on use of the social cost of carbon did not constitute a final agency action, a federal judge threw out a similar suit last August by Missouri and 11 other states.

Cain, however, who was a Louisiana trial lawyer before being elevated to the federal bench by Trump, was won over by Louisiana’s “major questions” argument in one of the first cases he has handled on federal agency power. “The President lacks power to promulgate fundamentally transformative legislative rules in areas of vast political, social, and economic importance,” Cain wrote, concluding that Biden’s executive order on the social cost of carbon “violates the major questions doctrine.”

Cain issued an unusually broad injunction that has stopped the EPA, the Energy and Interior departments, and other agencies from their work on dozens of federal regulations involving greenhouse gas emissions. The EPA, for example, in addition to its work on new standards for power plants, has for weeks had a major pending proposal on heavy-duty vehicles under review at the White House—the final stage before publication.

The Justice Department, in its request for a stay of the injunction, said that Cain’s order had even affected foreign policy. The government’s technical experts “have ceased communication with their counterparts in Canada” on the effort the two nations have to align their estimates on the social cost of carbon. The legal brief also said the United States could be blocked from multilateral discussions such as those of the Asian Development Bank, of which it is a member.

Cain has asked for parties to the case to submit briefs within the coming week on whether his order should be stayed. The Biden administration is not alone in arguing Cain’s order was out of line. Even conservative legal scholar Jonathan Adler, who is a proponent of use of the major questions doctrine, wrote in a column last week that Cain’s ruling was “wrong many times over and made a mess of relevant law.”

Max Sarinsky, a senior attorney at the Institute for Policy Integrity at NYU School of Law, thinks Cain’s injunction may not be in place long enough to have a lasting effect on Biden’s climate policy. 

“Given the extreme constitutional deficiencies with this opinion, I think the case will receive very close scrutiny on appeal,” Sarinsky said. But even if the injunction were to be upheld, he believes it will not stop action on climate. 

“This ruling certainly doesn’t upset all of the case law that federal agencies consider when they are weighing climate action,” he said. “If it were to be upheld, agencies would need to find other ways to meaningfully account for climate impacts without using these numbers, which have been widely credited with being among the best ways to account for those impacts.”

The red state cases show how much conservative legal thinking has evolved. Those who followed in the footsteps of the late Supreme Court Justice Antonin Scalia once characterized their philosophy as advocating judicial restraint. But supporters of the fossil fuel status quo in the West Virginia and Louisiana cases are seeking at least some judicial activism—as long as it is directed at restraining climate action by the Biden administration.