West Virginia v. EPA and ‘Major Questions’ Facing the Competition Agencies

By: Jeffry Duffy (Antitrust Advocate/Baker Hostetler)

The U.S. Supreme Court’s June 30 decision in West Virginia v. Environmental Protection Agency[1] will reverberate throughout the administrative state, inviting challenges to agency actions on major policy issues – including those in the competition arena – that Congress has not directly addressed in legislation.

West Virginia held that in the Clean Air Act, Congress did not clearly authorize the EPA to adopt regulations to force the U.S. power sector to shift systematically away from coal and toward cleaner energy sources. Formalizing the “major questions” doctrine, the Court held that a policy decision of such magnitude is presumptively for Congress and that Congress will not be found to have delegated legislative authority over a “major question” to an administrative agency absent a “clear congressional authorization” to that effect.

Thus, the Clean Air Act empowered the EPA to require the “best system of emission reduction” for each individual power plant but did not thereby authorize the agency to restructure the U.S. power sector as a whole. While the specific question in West Virginia was narrow, the principles declared will apply broadly to any attempt by an administrative agency to tackle a major question…

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