SCOTUS Has 'Major Questions' About 'Pen & Phone' Lawmaking

In a blockbuster 6-3 decision on June 30, the U.S. Supreme Court rejected the Environmental Protection Agency’s claim of sweeping regulatory authority under the Clean Air Act in the case West Virginia v. Environmental Protection Agency. Invoking the “major questions doctrine,” the high court stated that EPA could not “point to ‘clear congressional authorization’” to devise carbon emissions limits that would shut down many power plants and reconfigure the entire industry.

NCLA agrees that EPA’s Clean Power Plan exceeded its statutory authority. But we are concerned that the major questions doctrine’s reasoning might be misused by lower courts to decide that Congress may divest its legislative power if it does so knowingly and expressly or on matters that are less than major.

NCLA President and General Counsel Mark Chenoweth moderates the discussion with NCLA Senior Litigation Counsel Rich Samp, who co-authored NCLA's amicus brief, and Jonathan Brightbill, of Winston & Strawn, who helped draft the repeal of the Obama-era rule at issue and then argued that portion of the case in the DC Circuit.

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