West Virginia v. EPA ( 2022 )

7/13/2022 10:29:37 AM
Compare Results
Old File: New File:
old_20-1530.pdf 20-1530.pdf
versus
89 pages (424 KB) 89 pages (427 KB)
6/29/2022 7:05:07 PM 7/13/2022 10:28:29 AM
Total Changes Content Styling and
Annotations
1
1
Replacement
0 Styling
0 Insertions
0 Annotations
0 Deletions
Go to First Change (page 13)
file://NoURLProvided[7/13/2022 10:29:37 AM]
(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WEST VIRGINIA ET AL. v. ENVIRONMENTAL
PROTECTION AGENCY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 20–1530. Argued February 28, 2022—Decided June 30, 2022*
In 2015, the Environmental Protection Agency (EPA) promulgated the
Clean Power Plan rule, which addressed carbon dioxide emissions
from existing coal- and natural-gas-fired power plants. For authority,
the Agency cited Section 111 of the Clean Air Act, which, although
known as the New Source Performance Standards program, also au-
thorizes regulation of certain pollutants from existing sources under
Section 111(d). 42 U. S. C. §7411(d). Prior to the Clean Power Plan,
EPA had used Section 111(d) only a handful of times since its enact-
ment in 1970. Under that provision, although the States set the actual
enforceable rules governing existing sources (such as power plants),
EPA determines the emissions limit with which they will have to com-
ply. The Agency derives that limit by determining the “best system of
emission reduction . . . that has been adequately demonstrated,” or the
BSER, for the kind of existing source at issue. §7411(a)(1). The limit
then reflects the amount of pollution reduction “achievable through the
application of” that system. Ibid.
In the Clean Power Plan, EPA determined that the BSER for exist-
ing coal and natural gas plants included three types of measures,
which the Agency called “building blocks.” 80 Fed. Reg. 64667. The
first building block was “heat rate improvements” at coal-fired
plants—essentially practices such plants could undertake to burn coal
——————
* Together with No. 20–1531, North American Coal Corp. v. Environ-
mental Protection Agency et al., No. 20–1778, Westmoreland Mining
Holdings LLC v. Environmental Protection Agency et al., and No. 20–
1780, North Dakota v. Environmental Protection Agency et al., also on
certiorari to the same court.
2 WEST VIRGINIA v. EPA
Syllabus
more cleanly. Id., at 64727. This sort of source-specific, efficiency-
improving measure was similar in kind to those that EPA had previ-
ously identified as the BSER in other Section 111 rules.
Building blocks two and three were quite different, as both involved
what EPA called “generation shifting” at the grid level—i.e., a shift in
electricity production from higher-emitting to lower-emitting produc-
ers. Building block two was a shift in generation from existing coal-
fired power plants, which would make less power, to natural-gas-fired
plants, which would make more. Ibid. This would reduce carbon di-
oxide emissions because natural gas plants produce less carbon dioxide
per unit of electricity generated than coal plants. Building block three
worked like building block two, except that the shift was from both coal
and gas plants to renewables, mostly wind and solar. Id., at 64729,
64748. The Agency explained that, to implement the needed shift in
generation to cleaner sources, an operator could reduce the regulated
plant’s own production of electricity, build or invest in a new or exist-
ing natural gas plant, wind farm, or solar installation, or purchase
emission allowances or credits as part of a cap-and-trade regime. Id.,at 64731–64732. Taking any of these steps would implement a sector-
wide shift in electricity production from coal to natural gas and renew-
ables. Id., at 64731.
Having decided that the BSER was one that would reduce carbon
pollution mostly by moving production to cleaner sources, EPA then
set about determining “the degree of emission limitation achievable
through the application” of that system. §7411(a)(1). The Agency rec-
ognized that, in translating the BSER into an operational emissions
limit, it could choose whether to require anything from a little genera-
tion shifting to a great deal. It settled on what it regarded as a “rea-
sonable” amount of shift, which it based on modeling how much more
electricity both natural gas and renewable sources could supply with-
out causing undue cost increases or reducing the overall power supply.
Id., at 64797–64811. The Agency ultimately projected, for instance,
that it would be feasible to have coal provide 27% of national electricity
generation by 2030, down from 38% in 2014. From these projected
changes, EPA determined the applicable emissions performance rates,
which were so strict that no existing coal plant would have been able
to achieve them without engaging in one of the three means of gener-
ation shifting. The Government projected that the rule would impose
billions in compliance costs, raise retail electricity prices, require the
retirement of dozens of coal plants, and eliminate tens of thousands of
jobs.
This Court stayed the Clean Power Plan in 2016, preventing the rule
from taking effect. It was later repealed after a change in Presidential
administrations. Specifically, in 2019, EPA found that the Clean
Cite as: 597 U. S. ____ (2022) 3
Syllabus
Power Plan had exceeded the Agency’s statutory authority under Sec-
tion 111(d), which it interpreted to “limit[ ] the BSER to those systems
that can be put into operation at a building, structure, facility, or in-
stallation.” 84 Fed. Reg. 32524. EPA explained that the Clean Power
Plan, rather than setting the standard “based on the application of
equipment and practices at the level of an individual facility,” had in-
stead based it on “a shift in the energy generation mix at the grid
level,” id., at 32523. The Agency determined that the interpretive
question raised by the Clean Power Plan fell under the major questions
doctrine. Under that doctrine, it determined, a clear statement is nec-
essary for a court to conclude that Congress intended to delegate au-
thority “of this breadth to regulate a fundamental sector of the econ-
omy.” Id., at 32529. It found none. The Agency replaced the Clean
Power Plan by promulgating a different Section 111(d) regulation,
known as the Affordable Clean Energy (ACE) rule. Id., at 32532. In
that rule, EPA determined that the BSER would be akin to building
block one of the Clean Power Plan: a combination of equipment up-
grades and operating practices that would improve facilities’ heat
rates. Id., at 32522, 32537.
A number of States and private parties filed petitions for review in
the D. C. Circuit, challenging EPA’s repeal of the Clean Power Plan
and its enactment of the replacement ACE rule. The Court of Appeals
consolidated the cases and held that EPA’s “repeal of the Clean Power
Plan rested critically on a mistaken reading of the Clean Air Act”—
namely, that generation shifting cannot be a “system of emission re-
duction” under Section 111. 985 F. 3d 914, 995. The court vacated the
Agency’s repeal of the Clean Power Plan and remanded to the Agency
for further consideration. It also vacated and remanded the ACE rule
for the same reason. The court’s decision was followed by another
change in Presidential administrations, and EPA moved the court to
partially stay its mandate as to the Clean Power Plan while the Agency
considered whether to promulgate a new Section 111(d) rule. No party
opposed the motion, and the Court of Appeals agreed to stay its vaca-
tur of the Agency’s repeal of the Clean Power Plan.
Held:
1. This case remains justiciable notwithstanding the Government’s
contention that no petitioner has Article III standing, given EPA’s
stated intention not to enforce the Clean Power Plan and to instead
engage in new rulemaking. In considering standing to appeal, the
question is whether the appellant has experienced an injury “fairly
traceable to the judgment below.” Food Marketing Institute v. Argus
Leader Media, 588 U. S. ___, ___. If so, and a “favorable ruling” from
the appellate court “would redress [that] injury,” then the appellant
has a cognizable Article III stake. Ibid. Here, the judgment below
4 WEST VIRGINIA v. EPA
Syllabus
vacated the ACE rule and its embedded repeal of the Clean Power
Plan, and accordingly purports to bring the Clean Power Plan back
into legal effect. There is little question that the petitioner States are
injured, since the rule requires them to more stringently regulate
power plant emissions within their borders. The Government counters
that EPA’s current posture has mooted the prior dispute. The distinc-
tion between mootness and standing matters, however, because the
Government bears the burden to establish that a once-live case has
become moot. The Government’s argument in this case boils down to
its representation that EPA does not intend to enforce the Clean Power
Plan prior to promulgating a new Section 111(d) rule. But “voluntary
cessation does not moot a case” unless it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.”
Parents Involved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 719. Here, the Government “nowhere suggests that if
this litigation is resolved in its favor it will not” reimpose emissions
limits predicated on generation shifting. Ibid. Pp. 14–16.
2. Congress did not grant EPA in Section 111(d) of the Clean Air Act
the authority to devise emissions caps based on the generation shifting
approach the Agency took in the Clean Power Plan. Pp. 16–31.
(a) In devising emissions limits for power plants, EPA “deter-
mines” the BSER that—taking into account cost, health, and other fac-
tors—it finds “has been adequately demonstrated,” and then quanti-
fies “the degree of emission limitation achievable” if that best system
were applied to the covered source. §7411(a)(1). The issue here is
whether restructuring the Nation’s overall mix of electricity genera-
tion, to transition from 38% to 27% coal by 2030, can be the BSER
within the meaning of Section 111.
Precedent teaches that there are “extraordinary cases” in which the
“history and the breadth of the authority that [the agency] has as-
serted,” and the “economic and political significance” of that assertion,
provide a “reason to hesitate before concluding that Congress” meant
to confer such authority. FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120, 159–160. See, e.g., Alabama Assn. of Realtors v. Depart-
ment of Health and Human Servs., 594 U. S. ___, ___; Utility Air Reg-
ulatory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546
U. S. 243, 267; National Federation of Independent Business v. OSHA,
595 U. S. ___, ___. Under this body of law, known as the major ques-
tions doctrine, given both separation of powers principles and a prac-
tical understanding of legislative intent, the agency must point to
“clear congressional authorization” for the authority it claims. Utility
Air, 573 U. S., at 324. Pp. 16–20.
(b) This is a major questions case. EPA claimed to discover an
Cite as: 597 U. S. ____ (2022) 5
Syllabus
unheralded power representing a transformative expansion of its reg-
ulatory authority in the vague language of a long-extant, but rarely
used, statute designed as a gap filler. That discovery allowed it to
adopt a regulatory program that Congress had conspicuously declined
to enact itself. Given these circumstances, there is every reason to
“hesitate before concluding that Congress” meant to confer on EPA the
authority it claims under Section 111(d). Brown & Williamson, 529
U. S., at 160.
Prior to 2015, EPA had always set Section 111 emissions limits
based on the application of measures that would reduce pollution by
causing the regulated source to operate more cleanly, see, e.g., 41 Fed.
Reg. 48706—never by looking to a “system” that would reduce pollu-
tion simply by “shifting” polluting activity “from dirtier to cleaner
sources.” 80 Fed. Reg. 64726. The Government quibbles with this his-
tory, pointing to the 2005 Mercury Rule as one Section 111 rule that it
says relied upon a cap-and-trade mechanism to reduce emissions. See
70 Fed. Reg. 28616. But in that regulation, EPA set the emissions
limit—the “cap”—based on the use of “technologies [that could be] in-
stalled and operational on a nationwide basis” in the relevant
timeframe. Id., at 28620–28621. By contrast, and by design, there are
no particular controls a coal plant operator can install and operate to
attain the emissions limits established by the Clean Power Plan. In-
deed, the Agency nodded to the novelty of its approach when it ex-
plained that it was pursuing a “broader, forward-thinking approach to
the design” of Section 111 regulations that would “improve the overall
power system,” rather than the emissions performance of individual
sources, by forcing a shift throughout the power grid from one type of
energy source to another. 80 Fed. Reg. 64703 (emphasis added). This
view of EPA’s authority was not only unprecedented; it also effected a
“fundamental revision of the statute, changing it from [one sort of]
scheme of . . . regulation” into an entirely different kind. MCI Tele-
communications Corp. v. American Telephone & Telegraph Co., 512
U. S. 218, 231.
The Government attempts to downplay matters, noting that the
Agency must limit the magnitude of generation shift it demands to a
level that will not be “exorbitantly costly” or “threaten the reliability
of the grid.” Brief for Federal Respondents 42. This argument does
not limit the breadth of EPA’s claimed authority so much as reveal it:
On EPA’s view of Section 111(d), Congress implicitly tasked it, and it
alone, with balancing the many vital considerations of national policy
implicated in the basic regulation of how Americans get their energy.
There is little reason to think Congress did so. EPA has admitted that
issues of electricity transmission, distribution, and storage are not
within its traditional expertise. And this Court doubts that “Congress
6 WEST VIRGINIA v. EPA
Syllabus
. . . intended to delegate . . . decision[s] of such economic and political
significance,” i.e., how much coal-based generation there should be
over the coming decades, to any administrative agency. Brown & Wil-
liamson, 529 U. S., at 160. Nor can the Court ignore that the regula-
tory writ EPA newly uncovered in Section 111(d) conveniently enabled
it to enact a program, namely, cap-and-trade for carbon, that Congress
had already considered and rejected numerous times. The importance
of the policy issue and ongoing debate over its merits “makes the
oblique form of the claimed delegation all the more suspect.” Gonzales,
546 U. S., at 267–268. Pp. 20–28.
(c) Given that precedent counsels skepticism toward EPA’s claim
that Section 111 empowers it to devise carbon emissions caps based on
a generation shifting approach, the Government must point to “clear
congressional authorization” to regulate in that manner. Utility Air,
573 U. S., at 324. The Government can offer only EPA’s authority to
establish emissions caps at a level reflecting “the application of the
best system of emission reduction . . . adequately demonstrated.”
§7411(a)(1). The word “system” shorn of all context, however, is an
empty vessel. Such a vague statutory grant is not close to the sort of
clear authorization required. The Government points to other provi-
sions of the Clean Air Act—specifically the Acid Rain and National
Ambient Air Quality Standards (NAAQS) programs—that use the
word “system” or “similar words” to describe sector-wide mechanisms
for reducing pollution. But just because a cap-and-trade “system” can
be used to reduce emissions does not mean that it is the kind of “system
of emission reduction” referred to in Section 111.
Finally, the Court has no occasion to decide whether the statutory
phrase “system of emission reduction” refers exclusively to measures
that improve the pollution performance of individual sources, such
that all other actions are ineligible to qualify as the BSER. It is perti-
nent to the Court’s analysis that EPA has acted consistent with such
a limitation for four decades. But the only question before the Court
is more narrow: whether the “best system of emission reduction” iden-
tified by EPA in the Clean Power Plan was within the authority
granted to the Agency in Section 111(d) of the Clean Air Act. For the
reasons given, the answer is no. Pp. 28–31.
985 F. 3d 914, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J.,
filed a concurring opinion, in which ALITO, J., joined. KAGAN, J., filed a
dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.
Cite as: 597 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1530, 20–1531, 20–1778 and 20–1780
_________________
WEST VIRGINIA, ET AL., PETITIONERS
20–1530 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
THE NORTH AMERICAN COAL CORPORATION,
PETITIONER
20–1531 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
WESTMORELAND MINING HOLDINGS LLC,
PETITIONER
20–1778 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
NORTH DAKOTA, PETITIONER
20–1780 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 30, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Clean Air Act authorizes the Environmental Protec-
tion Agency to regulate power plants by setting a “standard
of performance” for their emission of certain pollutants into
2 WEST VIRGINIA v. EPA
Opinion of the Court
the air. 84 Stat. 1683, 42 U. S. C. §7411(a)(1). That stand-
ard may be different for new and existing plants, but in
each case it must reflect the “best system of emission reduc-
tion” that the Agency has determined to be “adequately
demonstrated” for the particular category. §§7411(a)(1),
(b)(1), (d). For existing plants, the States then implement
that requirement by issuing rules restricting emissions
from sources within their borders.
Since passage of the Act 50 years ago, EPA has exercised
this authority by setting performance standards based on
measures that would reduce pollution by causing plants to
operate more cleanly. In 2015, however, EPA issued a new
rule concluding that the “best system of emission reduction”
for existing coal-fired power plants included a requirement
that such facilities reduce their own production of electric-
ity, or subsidize increased generation by natural gas, wind,
or solar sources.
The question before us is whether this broader conception
of EPA’s authority is within the power granted to it by the
Clean Air Act.
I
A
The Clean Air Act establishes three main regulatory pro-
grams to control air pollution from stationary sources such
as power plants. Clean Air Amendments of 1970, 84 Stat.
1676, 42 U. S. C. §7401 et seq. One program is the New
Source Performance Standards program of Section 111, at
issue here. The other two are the National Ambient Air
Quality Standards (NAAQS) program, set out in Sections
108 through 110 of the Act, 42 U. S. C. §§7408–7410, and
the Hazardous Air Pollutants (HAP) program, set out in
Section 112, §7412. To understand the place and function
of Section 111 in the statutory scheme, some background on
the other two programs is in order.
The NAAQS program addresses air pollutants that “may
Cite as: 597 U. S. ____ (2022) 3
Opinion of the Court
reasonably be anticipated to endanger public health or wel-
fare,” and “the presence of which in the ambient air results
from numerous or diverse mobile or stationary sources.”
§7408(a)(1). After identifying such pollutants, EPA estab-
lishes a NAAQS for each. The NAAQS represents “the max-
imum airborne concentration of [the] pollutant that the
public health can tolerate.” Whitman v. American Trucking
Assns., Inc., 531 U. S. 457, 465 (2001); see §7409(b). EPA,
though, does not choose which sources must reduce their
pollution and by how much to meet the ambient pollution
target. Instead, Section 110 of the Act leaves that task in
the first instance to the States, requiring each “to submit to
[EPA] a plan designed to implement and maintain such
standards within its boundaries.” Train v. Natural Re-
sources Defense Council, Inc., 421 U. S. 60, 65 (1975); §7410.
The second major program governing stationary sources
is the HAP program. The HAP program primarily targets
pollutants, other than those already covered by a NAAQS,
that present “a threat of adverse human health effects,” in-
cluding substances known or anticipated to be “carcino-
genic, mutagenic, teratogenic, neurotoxic,” or otherwise
“acutely or chronically toxic.” §7412(b)(2).
EPA’s regulatory role with respect to these toxic pollu-
tants is different in kind from its role in administering the
NAAQS program. There, EPA is generally limited to deter-
mining the maximum safe amount of covered pollutants in
the air. As to each hazardous pollutant, by contrast, the
Agency must promulgate emissions standards for both new
and existing major sources. §7412(d)(1). Those standards
must “require the maximum degree of reduction in emis-
sions . . . that the [EPA] Administrator, taking into consid-
eration the cost of achieving such emission reduction, and
any non-air quality health and environmental impacts and
energy requirements, determines is achievable . . . through
application of measures, processes, methods, systems or
techniques” of emission reduction. §7412(d)(2). In other
4 WEST VIRGINIA v. EPA
Opinion of the Court
words, EPA must directly require all covered sources to re-
duce their emissions to a certain level. And it chooses that
level by determining the “maximum degree of reduction” it
considers “achievable” in practice by using the best existing
technologies and methods. §7412(d)(3).
Thus, in the parlance of environmental law, Section 112
directs the Agency to impose “technology-based standard[s]
for hazardous emissions,” Alaska Dept. of Environmental
Conservation v. EPA, 540 U. S. 461, 485, n. 12 (2004) (em-
phasis added). This sort of “ ‘technology-based’ approach fo-
cuses upon the control technologies that are available to in-
dustrial entities and requires the agency to . . . ensur[e]
that regulated firms adopt the appropriate cleanup technol-
ogy.” T. McGarity, Media-Quality, Technology, and Cost-
Benefit Balancing Strategies for Health and Environmen-
tal Regulation, 46 Law & Contemp. Prob. 159, 160 (Summer
1983) (McGarity). (Such “technologies” are not limited to
literal technology, such as scrubbers; “changes in the design
and operation” of the facility, or “in the way that employees
perform their tasks,” are also available options. Id., at 163,
n. 18.)
The third air pollution control scheme is the New Source
Performance Standards program of Section 111. §7411.
That section directs EPA to list “categories of stationary
sources” that it determines “cause[], or contribute[ ] signifi-
cantly to, air pollution which may reasonably be anticipated
to endanger public health or welfare.” §7411(b)(1)(A). Un-
der Section 111(b), the Agency must then promulgate for
each category “Federal standards of performance for new
sources,” §7411(b)(1)(B). A “standard of performance” is
one that
“reflects the degree of emission limitation achievable
through the application of the best system of emission
reduction which (taking into account the cost of achiev-
ing such reduction and any nonair quality health and
Cite as: 597 U. S. ____ (2022) 5
Opinion of the Court
environmental impact and energy requirements) the
[EPA] Administrator determines has been adequately
demonstrated.” §7411(a)(1).
Thus, the statute directs EPA to (1) “determine[ ],” taking
into account various factors, the “best system of emission
reduction which . . . has been adequately demonstrated,”
(2) ascertain the “degree of emission limitation achievable
through the application” of that system, and (3) impose an
emissions limit on new stationary sources that “reflects”
that amount. Ibid.; see also 80 Fed. Reg. 64538 (2015).
Generally speaking, a source may achieve that emissions
cap any way it chooses; the key is that its pollution be no
more than the amount “achievable through the application
of the best system of emission reduction . . . adequately
demonstrated,” or the BSER. §7411(a)(1); see §7411(b)(5).
EPA undertakes this analysis on a pollutant-by-pollutant
basis, establishing different standards of performance with
respect to different pollutants emitted from the same source
category. See, e.g., 73 Fed. Reg. 35838 (2008); 42 Fed. Reg.
22510 (1977).
Although the thrust of Section 111 focuses on emissions
limits for new and modified sources—as its title indicates—
the statute also authorizes regulation of certain pollutants
from existing sources. Under Section 111(d), once EPA “has
set new source standards addressing emissions of a partic-
ular pollutant under . . . section 111(b),” 80 Fed. Reg. 64711,
it must then address emissions of that same pollutant by
existing sources—but only if they are not already regulated
under the NAAQS or HAP programs. §7411(d)(1). Existing
power plants, for example, emit many pollutants covered by
a NAAQS or HAP standard. Section 111(d) thus “operates
as a gap-filler,” empowering EPA to regulate harmful emis-
sions not already controlled under the Agency’s other au-
thorities. American Lung Assn. v. EPA, 985 F. 3d 914, 932
(CADC 2021).
6 WEST VIRGINIA v. EPA
Opinion of the Court
Although the States set the actual rules governing exist-
ing power plants, EPA itself still retains the primary regu-
latory role in Section 111(d). The Agency, not the States,
decides the amount of pollution reduction that must ulti-
mately be achieved. It does so by again determining, as
when setting the new source rules, “the best system of emis-
sion reduction . . . that has been adequately demonstrated
for [existing covered] facilities.” 40 CFR §60.22(b)(5) (2021);
see also 80 Fed. Reg. 64664, and n. 1. The States then sub-
mit plans containing the emissions restrictions that they
intend to adopt and enforce in order not to exceed the per-
missible level of pollution established by EPA. See §§60.23,
60.24; 42 U. S. C. §7411(d)(1).
Reflecting the ancillary nature of Section 111(d), EPA has
used it only a handful of times since the enactment of the
statute in 1970. See 80 Fed. Reg. 64703, and n. 275 (past
regulations pertained to “four pollutants from five source
categories”). For instance, the Agency has established
emissions limits on acid mist from sulfuric acid production,
41 Fed. Reg. 48706 (1976) (identifying “fiber mist elimina-
tor” technology as BSER); sulfide gases released by kraft
pulp mills, 44 Fed. Reg. 29829 (1979) (determining BSER
to be a combination of scrubbers, incineration, filtration
systems, and temperature control); and emissions of vari-
ous harmful gases from municipal landfills, 61 Fed. Reg.
9907 (1996) (setting BSER as use of a flare to combust the
gases). It was thus only a slight overstatement for one of
the architects of the 1990 amendments to the Clean Air Act
to refer to Section 111(d) as an “obscure, never-used section
of the law.” Hearings on S. 300 et al. before the Subcom-
mittee on Environmental Protection of the Senate Commit-
tee on Environment and Public Works, 100th Cong., 1st
Sess., 13 (1987) (remarks of Sen. Durenberger).
B
Things changed in October 2015, when EPA promulgated
Cite as: 597 U. S. ____ (2022) 7
Opinion of the Court
two rules addressing carbon dioxide pollution from power
plants—one for new plants under Section 111(b), the other
for existing plants under Section 111(d). Both were prem-
ised on the Agency’s earlier finding that carbon dioxide is an
“air pollutant” that “may reasonably be anticipated to en-
danger public health or welfare” by causing climate change.
80 Fed. Reg. 64530. Carbon dioxide is not subject to a
NAAQS and has not been listed as a hazardous pollutant.
The first rule announced by EPA established federal car-
bon emissions limits for new power plants of two varieties:
fossil-fuel-fired electric steam generating units (mostly coal
fired) and natural-gas-fired stationary combustion tur-
bines. Id., at 64512. Following the statutory process set
out above, the Agency determined the BSER for the two cat-
egories of sources. For steam generating units, for instance,
EPA determined that the BSER was a combination of high-
efficiency production processes and carbon capture technol-
ogy. See 80 Fed. Reg. 64512. EPA then set the emissions
limit based on the amount of carbon dioxide that a plant
would emit with these technologies in place. Id., at 64513.
The second rule was triggered by the first: Because EPA
was now regulating carbon dioxide from new coal and gas
plants, Section 111(d) required EPA to also address carbon
emissions from existing coal and gas plants. See
§7411(d)(1). It did so through what it called the Clean
Power Plan rule.
In that rule, EPA established “final emission guidelines
for states to follow in developing plans” to regulate existing
power plants within their borders. Id., at 64662. To arrive
at the guideline limits, EPA did the same thing it does when
imposing federal regulations on new sources: It identified
the BSER.
The BSER that the Agency selected for existing coal-fired
power plants, however, was quite different from the BSER
it had chosen for new sources. The BSER for existing plants
included three types of measures, which the Agency called
8 WEST VIRGINIA v. EPA
Opinion of the Court
“building blocks.” Id., at 64667. The first building block
was “heat rate improvements” at coal-fired plants—essen-
tially practices such plants could undertake to burn coal
more efficiently. Id., at 64727. But such improvements,
EPA stated, would “lead to only small emission reductions,”
because coal-fired power plants were already operating
near optimum efficiency. Ibid. On the Agency’s view,
“much larger emission reductions [were] needed from [coal-
fired plants] to address climate change.” Ibid.
So the Agency included two additional building blocks in
its BSER, both of which involve what it called “generation
shifting from higher-emitting to lower-emitting” producers
of electricity. Id., at 64728. Building block two was a shift
in electricity production from existing coal-fired power
plants to natural-gas-fired plants. Ibid. Because natural
gas plants produce “typically less than half as much” carbon
dioxide per unit of electricity created as coal-fired plants,
the Agency explained, “this generation shift [would] re-
duce[ ] CO2 emissions.” Ibid. Building block three worked
the same way, except that the shift was from both coal- and
gas-fired plants to “new low- or zero-carbon generating ca-
pacity,” mainly wind and solar. Id., at 64729, 64748. “Most
of the CO2 controls” in the rule came from the application
of building blocks two and three. Id., at 64728.
The Agency identified three ways in which a regulated
plant operator could implement a shift in generation to
cleaner sources. Id., at 64731. First, an operator could
simply reduce the regulated plant’s own production of elec-
tricity. Second, it could build a new natural gas plant, wind
farm, or solar installation, or invest in someone else’s exist-
ing facility and then increase generation there. Ibid. Fi-
nally, operators could purchase emission allowances or
credits as part of a cap-and-trade regime. Id., at 64731–
64732. Under such a scheme, sources that achieve a reduc-
tion in their emissions can sell a credit representing the
value of that reduction to others, who are able to count it
Cite as: 597 U. S. ____ (2022) 9
Opinion of the Court
toward their own applicable emissions caps.
EPA explained that taking any of these steps would im-
plement a sector-wide shift in electricity production from
coal to natural gas and renewables. Id., at 64731. Given
the integrated nature of the power grid, “adding electricity
to the grid from one generator will result in the instantane-
ous reduction in generation from other generators,” and “re-
ductions in generation from one generator lead to the in-
stantaneous increase in generation” by others. Id., at
64769. So coal plants, whether by reducing their own pro-
duction, subsidizing an increase in production by cleaner
sources, or both, would cause a shift toward wind, solar, and
natural gas.
Having decided that the “best system of emission reduc-
tion . . . adequately demonstrated” was one that would re-
duce carbon pollution mostly by moving production to
cleaner sources, EPA then set about determining “the de-
gree of emission limitation achievable through the applica-
tion” of that system. 42 U. S. C. §7411(a)(1). The Agency
recognized that—given the nature of generation shifting—
it could choose from “a wide range of potential stringencies
for the BSER.” 80 Fed. Reg. 64730. Put differently, in
translating the BSER into an operational emissions limit,
EPA could choose whether to require anything from a little
generation shifting to a great deal. The Agency settled on
what it regarded as a “reasonable” amount of shift, which it
based on modeling of how much more electricity both natu-
ral gas and renewable sources could supply without causing
undue cost increases or reducing the overall power supply.
Id., at 64797–64811. Based on these changes, EPA pro-
jected that by 2030, it would be feasible to have coal provide
27% of national electricity generation, down from 38% in
2014. Id., at 64665, 64694; see Dept. of Energy, U. S. En-
ergy Information Admin., Monthly Energy Review (May
2015), Electricity Net Generation: Electric Power Sector,
p. 106 (Table 7.2b).
10 WEST VIRGINIA v. EPA
Opinion of the Court
From these significant projected reductions in genera-
tion, EPA developed a series of complex equations to “deter-
mine the emission performance rates” that States would be
required to implement. 80 Fed. Reg. 64815. The calcula-
tions resulted in numerical emissions ceilings so strict that
no existing coal plant would have been able to achieve them
without engaging in one of the three means of shifting gen-
eration described above. Indeed, the emissions limit the
Clean Power Plan established for existing power plants was
actually stricter than the cap imposed by the simultane-
ously published standards for new plants. Compare id., at
64742, with id., at 64513.
The point, after all, was to compel the transfer of power
generating capacity from existing sources to wind and solar.
The White House stated that the Clean Power Plan would
“drive a[n] . . . aggressive transformation in the domestic
energy industry.” White House Fact Sheet, App. in Ameri-
can Lung Assn. v. EPA, No. 19–1140 etc. (CADC), p. 2076.
EPA’s own modeling concluded that the rule would entail
billions of dollars in compliance costs (to be paid in the form
of higher energy prices), require the retirement of dozens of
coal-fired plants, and eliminate tens of thousands of jobs
across various sectors. EPA, Regulatory Impact Analysis
for the Clean Power Plan Final Rule 3–22, 3–30, 3–33, 6–
24, 6–25 (2015). The Energy Information Administration
reached similar conclusions, projecting that the rule would
cause retail electricity prices to remain persistently 10%
higher in many States, and would reduce GDP by at least a
trillion 2009 dollars by 2040. Dept. of Energy, Analysis of
the Impacts of the Clean Power Plan 21, 63–64 (May 2015).
C
These projections were never tested, because the Clean
Power Plan never went into effect. The same day that EPA
promulgated the rule, dozens of parties (including 27
States) petitioned for review in the D. C. Circuit. After that
Cite as: 597 U. S. ____ (2022) 11
Opinion of the Court
court declined to enter a stay of the rule, the challengers
sought the same relief from this Court. We granted a stay,
preventing the rule from taking effect. West Virginia v.
EPA, 577 U. S. 1126 (2016). The Court of Appeals later
heard argument on the merits en banc. But before it could
issue a decision, there was a change in Presidential admin-
istrations. The new administration requested that the liti-
gation be held in abeyance so that EPA could reconsider the
Clean Power Plan. The D. C. Circuit obliged, and later dis-
missed the petitions for review as moot.
EPA eventually repealed the rule in 2019, concluding
that the Clean Power Plan had been “in excess of its statu-
tory authority” under Section 111(d). 84 Fed. Reg. 32523(2019). Specifically, the Agency concluded that generation
shifting should not have been considered as part of the
BSER. The Agency interpreted Section 111 as “limit[ing]
the BSER to those systems that can be put into operation
at a building, structure, facility, or installation,” such as
“add-on controls” and “inherently lower-emitting pro-
cesses/practices/designs.” Id., at 32524. It then explained
that the Clean Power Plan, rather than setting the stand-
ard “based on the application of equipment and practices at
the level of an individual facility,” had instead based it on
“a shift in the energy generation mix at the grid level,” id.,at 32523—not the sort of measure that has “a potential for
application to an individual source.” Id., at 32524.
The Agency determined that “the interpretative question
raised” by the Clean Power Plan—“i.e., whether a ‘system
of emission reduction’ can consist of generation-shifting
measures”—fell under the “major question doctrine.” Id.,
at 32529. Under that doctrine, EPA explained, courts “ex-
pect Congress to speak clearly if it wishes to assign to an
agency decisions of vast economic and political signifi-
cance.” Ibid. (quoting Utility Air Regulatory Group v. EPA,
573 U. S. 302, 324 (2014) (internal quotation marks omit-
ted)). The Agency concluded that the Clean Power Plan was
12 WEST VIRGINIA v. EPA
Opinion of the Court
such a decision, for a number of reasons. Its “generation-
shifting scheme was projected to have billions of dollars of
impact.” 84 Fed. Reg. 32529. “[N]o section 111 rule of the
scores issued ha[d] ever been based on generation shifting.”
Ibid. And that novel reading of the statute would empower
EPA “to order the wholesale restructuring of any industrial
sector” based only on its discretionary assessment of “such
factors as ‘cost’ and ‘feasibility.’ ” Ibid.EPA argued that under the major questions doctrine, a
clear statement was necessary to conclude that Congress
intended to delegate authority “of this breadth to regulate
a fundamental sector of the economy.” Ibid. It found none.
“Indeed,” it concluded, given the text and structure of the
statute, “Congress has directly spoken to this precise ques-
tion and precluded” the use of measures such as generation
shifting. Ibid.In the same rulemaking, the Agency replaced the Clean
Power Plan by promulgating a different Section 111(d) reg-
ulation, known as the Affordable Clean Energy (ACE) Rule.
Id., at 32532. Based on its view of what measures may per-
missibly make up the BSER, EPA determined that the best
system would be akin to building block one of the Clean
Power Plan: a combination of equipment upgrades and op-
erating practices that would improve facilities’ heat rates.
Id., at 32522, 32537. The ACE Rule determined that the
application of its BSER measures would result in only small
reductions in carbon dioxide emissions. Id., at 32561.
D
A number of States and private parties immediately filed
petitions for review in the D. C. Circuit, challenging EPA’s
repeal of the Clean Power Plan and its enactment of the re-
placement ACE Rule. Other States and private entities—
including petitioners here West Virginia, North Dakota,
Westmoreland Mining Holdings LLC, and The North Amer-
ican Coal Corporation (NACC)—intervened to defend both
Cite as: 597 U. S. ____ (2022) 13
Opinion of the Court
actions.
The Court of Appeals consolidated all 12 petitions for re-
view into one case. It then held that EPA’s “repeal of the
Clean Power Plan rested critically on a mistaken reading of
the Clean Air Act”—namely, that generation shifting can-
not be a “system of emission reduction” under Section 111.
985 F. 3d, at 995. To the contrary, the court concluded, the
statute could reasonably be read to encompass generation
shifting. As part of that analysis, the Court of Appeals con-
cluded that the major questions doctrine did not apply, and
thus rejected the need for a clear statement of congressional
intent to delegate such power to EPA. Id., at 959–968.
Having found that EPA misunderstood the scope of its au-
thority under the Clean Air Act, the Court vacated the
Agency’s repeal of the Clean Power Plan and remanded to
the Agency for further consideration. Id., at 995. It also
vacated and remanded the replacement rule, the ACE Rule,
for the same reason. Ibid.
The court’s decision, handed down on January 19, 2021,
was quickly followed by another change in Presidential ad-
ministrations. One month later, EPA moved the Court of
Appeals to partially stay the issuance of its mandate as it
pertained to the Clean Power Plan. The Agency did so to
ensure that the Clean Power Plan would not immediately
go back into effect. Respondents’ Motion for a Partial Stay
of Issuance of the Mandate in American Lung Assn. v. EPA,
No. 19–1140 etc. (CADC), p. 4. EPA believed that such a
result would not make sense while it was in the process of
considering whether to promulgate a new Section 111(d)
rule. Ibid. No party opposed the motion, and the court ac-
cordingly stayed its vacatur of the Agency’s repeal of the
Clean Power Plan.
Westmoreland, NACC, and the States defending the re-
peal of the Clean Power Plan all filed petitions for certio-
rari. We granted the petitions and consolidated the cases.
595 U. S. ___ (2021).
14 WEST VIRGINIA v. EPA
Opinion of the Court
II
We first consider the Government’s contention that no pe-
titioner has Article III standing to seek our review.
Although most disputes over standing concern whether a
plaintiff has satisfied the requirement when filing suit, “Ar-
ticle III demands that an actual controversy persist
throughout all stages of litigation.” Hollingsworth v. Perry,
570 U. S. 693, 705 (2013) (internal quotation marks omit-
ted). The requirement of standing “must be met by persons
seeking appellate review, just as it must be met by persons
appearing in courts of first instance.” Arizonans for Official
English v. Arizona, 520 U. S. 43, 64 (1997). In considering
a litigant’s standing to appeal, the question is whether it
has experienced an injury “fairly traceable to the judgment
below.” Food Marketing Institute v. Argus Leader Media,
588 U. S. ___, ___ (2019) (slip op., at 4) (emphasis added;
internal quotation marks omitted). If so, and a “favorable
ruling” from the appellate court “would redress [that] in-
jury,” then the appellant has a cognizable Article III stake.
Ibid.Here, it is apparent that at least one group of petition-
ers—the state petitioners—are injured by the Court of Ap-
peals’ judgment. That judgment vacated “the ACE rule and
its embedded repeal of the Clean Power Plan,” 985 F. 3d, at
995 (emphasis added), and accordingly purports to bring
the Clean Power Plan back into legal effect. Thus, to the
extent the Clean Power Plan harms the States, the D. C.
Circuit’s judgment inflicts the same injury. And there can
be “little question” that the rule does injure the States,
since they are “the object of ” its requirement that they more
stringently regulate power plant emissions within their
borders. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–
562 (1992).
The Government counters that “agency and judicial ac-
tions” subsequent to the court’s entry of judgment have
“eliminated any . . . possibility” of injury. Brief for Federal
Cite as: 597 U. S. ____ (2022) 15
Opinion of the Court
Respondents 16. First, after the decision, EPA informed
the Court of Appeals that it does not intend to enforce the
Clean Power Plan because it has decided to promulgate a
new Section 111(d) rule. Second, on EPA’s request, the
lower court stayed the part of its judgment that vacated the
repeal, pending that new rulemaking. “These circum-
stances,” says the Government, “have mooted the prior dis-
pute as to the CPP Repeal Rule’s legality.” Id., at 17 (em-
phasis added).
That Freudian slip, however, reveals the basic flaw in the
Government’s argument: It is the doctrine of mootness, not
standing, that addresses whether “an intervening circum-
stance [has] deprive[d] the plaintiff of a personal stake in
the outcome of the lawsuit.” Genesis HealthCare Corp. v.
Symczyk, 569 U. S. 66, 72 (2013) (internal quotation marks
omitted); see also Friends of the Earth, Inc. v. Laidlaw En-
vironmental Services (TOC), Inc., 528 U. S. 167, 189–192
(2000). The distinction matters because the Government,
not petitioners, bears the burden to establish that a once-
live case has become moot. Id., at 189; Adarand Construc-
tors, Inc. v. Slater, 528 U. S. 216, 222 (2000) (per curiam).
That burden is “heavy” where, as here, “[t]he only con-
ceivable basis for a finding of mootness in th[e] case is [the
respondent’s] voluntary conduct.” Friends of the Earth, 528
U. S., at 189. Although the Government briefly argues that
the lower court’s stay of its mandate extinguished the con-
troversy, it cites no authority for that proposition, and it
does not make sense: Lower courts frequently stay their
mandates when notified that the losing party intends to
seek our certiorari review. So the Government’s mootness
argument boils down to its representation that EPA has no
intention of enforcing the Clean Power Plan prior to prom-
ulgating a new Section 111(d) rule.
But “voluntary cessation does not moot a case” unless it
is “absolutely clear that the allegedly wrongful behavior
16 WEST VIRGINIA v. EPA
Opinion of the Court
could not reasonably be expected to recur.” Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 719 (2007). Here the Government “nowhere
suggests that if this litigation is resolved in its favor it will
not” reimpose emissions limits predicated on generation
shifting; indeed, it “vigorously defends” the legality of such
an approach. Ibid. We do not dismiss a case as moot in
such circumstances. See City of Mesquite v. Aladdin’s Cas-
tle, Inc., 455 U. S. 283, 288–289 (1982). The case thus re-
mains justiciable, and we may turn to the merits.
III
A
In devising emissions limits for power plants, EPA first
“determines” the “best system of emission reduction” that—
taking into account cost, health, and other factors—it finds
“has been adequately demonstrated.” 42 U. S. C.
§7411(a)(1). The Agency then quantifies “the degree of
emission limitation achievable” if that best system were ap-
plied to the covered source. Ibid.; see also 80 Fed. Reg.
64719. The BSER, therefore, “is the central determination
that the EPA must make in formulating [its emission]
guidelines” under Section 111. Id., at 64723. The issue
here is whether restructuring the Nation’s overall mix of
electricity generation, to transition from 38% coal to 27%
coal by 2030, can be the “best system of emission reduction”
within the meaning of Section 111.
“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989). Where the statute at issue is one that confers au-
thority upon an administrative agency, that inquiry must
be “shaped, at least in some measure, by the nature of the
question presented”—whether Congress in fact meant to
confer the power the agency has asserted. FDA v. Brown &
Cite as: 597 U. S. ____ (2022) 17
Opinion of the Court
Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). In the
ordinary case, that context has no great effect on the appro-
priate analysis. Nonetheless, our precedent teaches that
there are “extraordinary cases” that call for a different ap-
proach—cases in which the “history and the breadth of the
authority that [the agency] has asserted,” and the “eco-
nomic and political significance” of that assertion, provide
a “reason to hesitate before concluding that Congress”
meant to confer such authority. Id., at 159–160.
Such cases have arisen from all corners of the adminis-
trative state. In Brown & Williamson, for instance, the
Food and Drug Administration claimed that its authority
over “drugs” and “devices” included the power to regulate,
and even ban, tobacco products. Id., at 126–127. We re-
jected that “expansive construction of the statute,” conclud-
ing that “Congress could not have intended to delegate”
such a sweeping and consequential authority “in so cryptic
a fashion.” Id., at 160. In Alabama Assn. of Realtors v. De-
partment of Health and Human Servs., 594 U. S. ___, ___
(2021) (per curiam) (slip op., at 3), we concluded that the
Centers for Disease Control and Prevention could not, un-
der its authority to adopt measures “necessary to prevent
the . . . spread of ” disease, institute a nationwide eviction
moratorium in response to the COVID–19 pandemic. We
found the statute’s language a “wafer-thin reed” on which
to rest such a measure, given “the sheer scope of the CDC’s
claimed authority,” its “unprecedented” nature, and the fact
that Congress had failed to extend the moratorium after
previously having done so. Id., at ___–___ (slip op., at 6–8).
Our decision in Utility Air addressed another question re-
garding EPA’s authority—namely, whether EPA could con-
strue the term “air pollutant,” in a specific provision of the
Clean Air Act, to cover greenhouse gases. 573 U. S., at 310.
Despite its textual plausibility, we noted that the Agency’s
interpretation would have given it permitting authority
over millions of small sources, such as hotels and office
18 WEST VIRGINIA v. EPA
Opinion of the Court
buildings, that had never before been subject to such re-
quirements. Id., at 310, 324. We declined to uphold EPA’s
claim of “unheralded” regulatory power over “a significant
portion of the American economy.” Id., at 324. In Gonzales
v. Oregon, 546 U. S. 243 (2006), we confronted the Attorney
General’s assertion that he could rescind the license of any
physician who prescribed a controlled substance for as-
sisted suicide, even in a State where such action was legal.
The Attorney General argued that this came within his
statutory power to revoke licenses where he found them “in-
consistent with the public interest,” 21 U. S. C. §823(f ). We
considered the “idea that Congress gave [him] such broad
and unusual authority through an implicit delegation . . .
not sustainable.” 546 U. S., at 267. Similar considerations
informed our recent decision invalidating the Occupational
Safety and Health Administration’s mandate that “84 mil-
lion Americans . . . either obtain a COVID–19 vaccine or un-
dergo weekly medical testing at their own expense.” Na-
tional Federation of Independent Business v. Occupational
Safety and Health Administration, 595 U. S. ___, ___ (2022)
(per curiam) (slip op., at 5). We found it “telling that OSHA,
in its half century of existence,” had never relied on its au-
thority to regulate occupational hazards to impose such a
remarkable measure. Id., at ___ (slip op., at 8).
All of these regulatory assertions had a colorable textual
basis. And yet, in each case, given the various circum-
stances, “common sense as to the manner in which Con-
gress [would have been] likely to delegate” such power to
the agency at issue, Brown & Williamson, 529 U. S., at 133,
made it very unlikely that Congress had actually done so.
Extraordinary grants of regulatory authority are rarely ac-
complished through “modest words,” “vague terms,” or
“subtle device[s].” Whitman, 531 U. S., at 468. Nor does
Congress typically use oblique or elliptical language to em-
power an agency to make a “radical or fundamental change”
to a statutory scheme. MCI Telecommunications Corp. v.
Cite as: 597 U. S. ____ (2022) 19
Opinion of the Court
American Telephone & Telegraph Co., 512 U. S. 218, 229
(1994). Agencies have only those powers given to them by
Congress, and “enabling legislation” is generally not an
“open book to which the agency [may] add pages and change
the plot line.” E. Gellhorn & P. Verkuil, Controlling Chevron-
Based Delegations, 20 Cardozo L. Rev. 989, 1011 (1999).
We presume that “Congress intends to make major policy
decisions itself, not leave those decisions to agencies.”
United States Telecom Assn. v. FCC, 855 F. 3d 381, 419
(CADC 2017) (Kavanaugh, J., dissenting from denial of re-
hearing en banc).
Thus, in certain extraordinary cases, both separation of
powers principles and a practical understanding of legisla-
tive intent make us “reluctant to read into ambiguous stat-
utory text” the delegation claimed to be lurking there. Util-
ity Air, 573 U. S., at 324. To convince us otherwise,
something more than a merely plausible textual basis for
the agency action is necessary. The agency instead must
point to “clear congressional authorization” for the power it
claims. Ibid.
The dissent criticizes us for “announc[ing] the arrival” of
this major questions doctrine, and argues that each of the
decisions just cited simply followed our “ordinary method”
of “normal statutory interpretation,” post, at 13, 15 (opinion
of KAGAN, J.). But in what the dissent calls the “key case”
in this area, Brown & Williamson, post, at 15, the Court
could not have been clearer: “In extraordinary cases . . .
there may be reason to hesitate” before accepting a reading
of a statute that would, under more “ordinary” circum-
stances, be upheld. 529 U. S., at 159. Or, as we put it more
recently, we “typically greet” assertions of “extravagant
statutory power over the national economy” with “skepti-
cism.” Utility Air, 573 U. S., at 324. The dissent attempts
to fit the analysis in these cases within routine statutory
interpretation, but the bottom line—a requirement of “clear
20 WEST VIRGINIA v. EPA
Opinion of the Court
congressional authorization,” ibid.—confirms that the ap-
proach under the major questions doctrine is distinct.
As for the major questions doctrine “label[ ],” post, at 13,
it took hold because it refers to an identifiable body of law
that has developed over a series of significant cases all ad-
dressing a particular and recurring problem: agencies as-
serting highly consequential power beyond what Congress
could reasonably be understood to have granted. Scholars
and jurists have recognized the common threads between
those decisions. So have we. See Utility Air, 573 U. S., at
324 (citing Brown & Williamson and MCI); King v. Burwell,
576 U. S. 473, 486 (2015) (citing Utility Air, Brown & Wil-
liamson, and Gonzales).
B
Under our precedents, this is a major questions case. In
arguing that Section 111(d) empowers it to substantially re-
structure the American energy market, EPA “claim[ed] to
discover in a long-extant statute an unheralded power” rep-
resenting a “transformative expansion in [its] regulatory
authority.” Utility Air, 573 U. S., at 324. It located that
newfound power in the vague language of an “ancillary pro-
vision[ ]” of the Act, Whitman, 531 U. S., at 468, one that
was designed to function as a gap filler and had rarely been
used in the preceding decades. And the Agency’s discovery
allowed it to adopt a regulatory program that Congress had
conspicuously and repeatedly declined to enact itself.
Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546
U. S., at 267–268; Alabama Assn., 594 U. S., at ___, ___ (slip
op., at 2, 8). Given these circumstances, there is every rea-
son to “hesitate before concluding that Congress” meant to
confer on EPA the authority it claims under Section 111(d).
Brown & Williamson, 529 U. S., at 159–160.
Prior to 2015, EPA had always set emissions limits under
Section 111 based on the application of measures that
would reduce pollution by causing the regulated source to
Cite as: 597 U. S. ____ (2022) 21
Opinion of the Court
operate more cleanly. See, e.g., 41 Fed. Reg. 48706 (requir-
ing “degree of control achievable through the application of
fiber mist eliminators”); see also supra, at 6. It had never
devised a cap by looking to a “system” that would reduce
pollution simply by “shifting” polluting activity “from dirt-
ier to cleaner sources.” 80 Fed. Reg. 64726; see id., at 64738(“[O]ur traditional interpretation . . . has allowed regulated
entities to produce as much of a particular good as they de-
sire provided that they do so through an appropriately clean
(or low-emitting) process.”). And as Justice Frankfurter
has noted, “just as established practice may shed light on
the extent of power conveyed by general statutory lan-
guage, so the want of assertion of power by those who pre-
sumably would be alert to exercise it, is equally significant
in determining whether such power was actually con-
ferred.” FTC v. Bunte Brothers, Inc., 312 U. S. 349, 352
(1941).
The Government quibbles with this description of the his-
tory of Section 111(d), pointing to one rule that it says relied
upon a cap-and-trade mechanism to reduce emissions. See
70 Fed. Reg. 28616 (2005) (Mercury Rule). The legality of
that choice was controversial at the time and was never ad-
dressed by a court. See New Jersey v. EPA, 517 F. 3d 574(CADC 2008) (vacating on other grounds). Even assuming
the Rule was valid, though, it still does not help the Gov-
ernment. In that regulation, EPA set the actual “emission
cap”—i.e., the limit on emissions that sources would be re-
quired to meet—“based on the level of [mercury] emissions
reductions that w[ould] be achievable by” the use of “tech-
nologies [that could be] installed and operational on a na-
tionwide basis” in the relevant timeframe—namely, wet
scrubbers. 70 Fed. Reg. 28620–28621. In other words, EPA
set the cap based on the application of particular controls,
and regulated sources could have complied by installing
them. By contrast, and by design, there is no control a coal
22 WEST VIRGINIA v. EPA
Opinion of the Court
plant operator can deploy to attain the emissions limits es-
tablished by the Clean Power Plan. See supra, at 10. The
Mercury Rule, therefore, is no precedent for the Clean
Power Plan. To the contrary, it was one more entry in an
unbroken list of prior Section 111 rules that devised the en-
forceable emissions limit by determining the best control
mechanisms available for the source.1
This consistent understanding of “system[s] of emission
reduction” tracked the seemingly universal view, as stated
by EPA in its inaugural Section 111(d) rulemaking, that
“Congress intended a technology-based approach” to regu-
lation in that Section. 40 Fed. Reg. 53343 (1975); see id., at
53341 (“degree of control to be reflected in EPA’s emission
guidelines” will be based on “application of best adequately
demonstrated control technology”).2 A technology-based
standard, recall, is one that focuses on improving the emis-
sions performance of individual sources. EPA “commonly
——————
1 The dissent cites other ostensible precedents, see post, at 25–26, but
they are also inapposite. A few allowed cap-and-trade or similar averag-
ing measures as compliance mechanisms, like the Mercury Rule. See,
e.g., 60 Fed. Reg. 65402 (1995). The others were not Section 111 rules.
2 See McGarity 165 (EPA promulgates “technology-based new source
performance standards that require the implementation of the ‘best
available demonstrated’ technology”); P. McCubbin, The Risk in Technology-
Based Standards, 16 Duke Env. L. & Pol’y Forum 1, 46, n. 180 (2003)
(Section 111 standards “are another set of technology-based standards”);
W. Wagner, The Triumph of Technology-Based Standards, 2000 U. Ill.
L. Rev 83, 84, n. 4 (“Technology-based standards made their initial ap-
pearance” in “Section 111 of the Clean Air Act,” which “requires the EPA
to set technology-based emission limitations”).
The dissent points to a 1977 amendment to Section 111 as evidence
that the 1970 Congress did not intend for EPA to establish this sort of
source-specific standard. Post, at 10–11. But it is clear that the 1977
amendment was merely intended to prohibit power plants from adopting
one specific kind of at-the-source measure—a switch from burning high-
sulfur coal to low-sulfur coal—and was not intended or understood to
change the basic, source-focused regulatory approach. See Wisconsin
Elec. Power Co. v. Reilly, 893 F. 2d 901, 919 (CA8 1990) (explaining the
history); B. Ackerman & W. Hassler, Clean Coal/Dirty Air (1981) (same).
Cite as: 597 U. S. ____ (2022) 23
Opinion of the Court
referred to” the “level of control” required as a “best demon-
strated technology (BDT)” standard, 73 Fed. Reg. 34073,
and consistently applied it as such. E.g., 61 Fed. Reg. 9907(declaring “BDT” to be “a well-designed and well-operated
gas collection system and . . . a control device capable of re-
ducing [harmful gases] in the collected gas by 98 weight-
percent.”).
Indeed, EPA nodded to this history in the Clean Power
Plan itself, describing the sort of “systems of emission re-
duction” it had always before selected—“efficiency improve-
ments, fuel-switching,” and “add-on controls”—as “more
traditional air pollution control measures.” 80 Fed. Reg.
64784. The Agency noted that it had “considered” such
measures as potential systems of emission reduction for
carbon dioxide, ibid., including a measure it ultimately
adopted as a “component” of the BSER, namely, heat rate
improvements. Id., at 64727.
But, the Agency explained, in order to “control[ ] CO2 from
affected [plants] at levels . . . necessary to mitigate the dan-
gers presented by climate change,” it could not base the
emissions limit on “measures that improve efficiency at the
power plants.” Id., at 64728. “The quantity of emissions
reductions resulting from the application of these
measures” would have been “too small.” Id., at 64727. In-
stead, to attain the necessary “critical CO2 reductions,”
EPA adopted what it called a “broader, forward-thinking
approach to the design” of Section 111 regulations. Id., at
64703. Rather than focus on improving the performance of
individual sources, it would “improve the overall power sys-
tem by lowering the carbon intensity of power generation.”
Ibid. (emphasis added). And it would do that by forcing a
shift throughout the power grid from one type of energy
source to another. In the words of the then-EPA Adminis-
trator, the rule was “not about pollution control” so much
as it was “an investment opportunity” for States, especially
“investments in renewables and clean energy.” Oversight
24 WEST VIRGINIA v. EPA
Opinion of the Court
Hearing on EPA’s Proposed Carbon Pollution Standards for
Existing Power Plants before the Senate Committee on En-
vironment and Public Works, 113th Cong., 2d Sess., p. 33
(2014).
This view of EPA’s authority was not only unprecedented;
it also effected a “fundamental revision of the statute,
changing it from [one sort of] scheme of . . . regulation” into
an entirely different kind. MCI, 512 U. S., at 231. Under
the Agency’s prior view of Section 111, its role was limited
to ensuring the efficient pollution performance of each indi-
vidual regulated source. Under that paradigm, if a source
was already operating at that level, there was nothing more
for EPA to do. Under its newly “discover[ed]” authority,
Utility Air, 573 U. S., at 324, however, EPA can demand
much greater reductions in emissions based on a very dif-
ferent kind of policy judgment: that it would be “best” if coal
made up a much smaller share of national electricity gen-
eration. And on this view of EPA’s authority, it could go
further, perhaps forcing coal plants to “shift” away virtually
all of their generation—i.e., to cease making power alto-
gether.3
The Government attempts to downplay the magnitude of
this “unprecedented power over American industry.” In-
dustrial Union Dept., AFL–CIO v. American Petroleum In-
stitute, 448 U. S. 607, 645 (1980) (plurality opinion). The
amount of generation shifting ordered, it argues, must be
“adequately demonstrated” and “best” in light of the statu-
——————
3 The dissent suggests that EPA could bring about the same result by,
for example, simply requiring coal plants to become natural gas plants,
and that this would fit within the prior regulatory approach of efficiency-
improving, at-the-source measures. Post, at 24. Of course, EPA has
never ordered anything remotely like that, and we doubt it could. Sec-
tion 111(d) empowers EPA to guide States in “establish[ing] standards
of performance” for “existing source[s],” §7411(d)(1), not to direct existing
sources to effectively cease to exist.
Cite as: 597 U. S. ____ (2022) 25
Opinion of the Court
tory factors of “cost,” “nonair quality health and environ-
mental impact,” and “energy requirements.” 42 U. S. C.
§7411(a)(1). EPA therefore must limit the magnitude of
generation shift it demands to a level that will not be “exor-
bitantly costly” or “threaten the reliability of the grid.”
Brief for Federal Respondents 42.
But this argument does not so much limit the breadth of
the Government’s claimed authority as reveal it. On EPA’s
view of Section 111(d), Congress implicitly tasked it, and it
alone, with balancing the many vital considerations of na-
tional policy implicated in deciding how Americans will get
their energy. EPA decides, for instance, how much of a
switch from coal to natural gas is practically feasible by
2020, 2025, and 2030 before the grid collapses, and how
high energy prices can go as a result before they become
unreasonably “exorbitant.”
There is little reason to think Congress assigned such de-
cisions to the Agency. For one thing, as EPA itself admitted
when requesting special funding, “Understand[ing] and
project[ing] system-wide . . . trends in areas such as elec-
tricity transmission, distribution, and storage” requires
“technical and policy expertise not traditionally needed in
EPA regulatory development.” EPA, Fiscal Year 2016: Jus-
tification of Appropriation Estimates for the Committee on
Appropriations 213 (2015) (emphasis added). “When [an]
agency has no comparative expertise” in making certain
policy judgments, we have said, “Congress presumably
would not” task it with doing so. Kisor v. Wilkie, 588 U. S.
___, ___ (2019) (slip op., at 17); see also Gonzales, 546 U. S.,
at 266–267.
We also find it “highly unlikely that Congress would
leave” to “agency discretion” the decision of how much coal-
based generation there should be over the coming decades.
MCI, 512 U. S., at 231; see also Brown & Williamson, 529
U. S., at 160 (“We are confident that Congress could not
have intended to delegate a decision of such economic and
26 WEST VIRGINIA v. EPA
Opinion of the Court
political significance to an agency in so cryptic a fashion.”).
The basic and consequential tradeoffs involved in such a
choice are ones that Congress would likely have intended
for itself. See W. Eskridge, Interpreting Law: A Primer on
How To Read Statutes and the Constitution 288 (2016)
(“Even if Congress has delegated an agency general rule-
making or adjudicatory power, judges presume that Con-
gress does not delegate its authority to settle or amend ma-
jor social and economic policy decisions.”). Congress
certainly has not conferred a like authority upon EPA any-
where else in the Clean Air Act. The last place one would
expect to find it is in the previously little-used backwater of
Section 111(d).
The dissent contends that there is nothing surprising
about EPA dictating the optimal mix of energy sources na-
tionwide, since that sort of mandate will reduce air pollu-
tion from power plants, which is EPA’s bread and butter.
Post, at 20–22. But that does not follow. Forbidding evic-
tions may slow the spread of disease, but the CDC’s order-
ing such a measure certainly “raise[s] an eyebrow.” Post, at
18. We would not expect the Department of Homeland Se-
curity to make trade or foreign policy even though doing so
could decrease illegal immigration. And no one would con-
sider generation shifting a “tool” in OSHA’s “toolbox,” post,
at 21, even though reducing generation at coal plants would
reduce workplace illness and injury from coal dust.
The dissent also cites our decision in American Elec.
Power Co. v. Connecticut, 564 U. S. 410 (2011). Post, at 20.
The question there, however, was whether Congress
wanted district court judges to decide, under unwritten fed-
eral nuisance law, “whether and how to regulate carbon-
dioxide emissions from powerplants.” 564 U. S., at 426. We
answered no, given the existence of Section 111(d). But we
said nothing about the ways in which Congress intended
EPA to exercise its power under that provision. And it is
doubtful we had in mind that it would claim the authority
Cite as: 597 U. S. ____ (2022) 27
Opinion of the Court
to require a large shift from coal to natural gas, wind, and
solar. After all, EPA had never regulated in that manner,
despite having issued many prior rules governing power
plants under Section 111. See, e.g., 71 Fed. Reg. 9866(2006); 70 Fed. Reg. 28616; 44 Fed. Reg. 33580; 36 Fed. Reg.
24875 (1973).4
Finally, we cannot ignore that the regulatory writ EPA
newly uncovered conveniently enabled it to enact a program
that, long after the dangers posed by greenhouse gas emis-
sions “had become well known, Congress considered and re-
jected” multiple times. Brown & Williamson, 529 U. S., at
144; see also Alabama Assn., 594 U. S., at ___ (slip op., at
2); Bunte Brothers, 312 U. S., at 352 (lack of authority not
previously exercised “reinforced by [agency’s] unsuccessful
attempt . . . to secure from Congress an express grant of
[the challenged] authority”). At bottom, the Clean Power
Plan essentially adopted a cap-and-trade scheme, or set of
state cap-and-trade schemes, for carbon. See 80 Fed. Reg.
64734 (“Emissions trading is . . . an integral part of our
BSER analysis.”). Congress, however, has consistently re-
jected proposals to amend the Clean Air Act to create such
a program. See, e.g., American Clean Energy and Security
——————
4 According to the dissent, “EPA is always controlling the mix of energy
sources” under Section 111 because all of the Agency’s rules impose some
costs on regulated plants, and therefore (all else equal) cause those
plants to lose some share of the electricity market. Post, at 22. But there
is an obvious difference between (1) issuing a rule that may end up caus-
ing an incidental loss of coal’s market share, and (2) simply announcing
what the market share of coal, natural gas, wind, and solar must be, and
then requiring plants to reduce operations or subsidize their competitors
to get there. No one has ever thought that the Clean Power Plan was
just business as usual. See American Lung Assn. v. EPA, 985 F. 3d 914,
1000 (CADC 2021) (Walker, J., dissenting) (“Leaders of the environmen-
tal movement considered the rule ‘groundbreaking,’ called its announce-
ment ‘historic,’ and labeled it a ‘critically important catalyst.’ ” (footnotes
omitted)).
28 WEST VIRGINIA v. EPA
Opinion of the Court
Act of 2009, H. R. 2454, 111th Cong., 1st Sess.; Clean En-
ergy Jobs and American Power Act, S. 1733, 111th Cong.,
1st Sess. (2009). It has also declined to enact similar
measures, such as a carbon tax. See, e.g., Climate Protec-
tion Act of 2013, S. 332, 113th Cong., 1st Sess.; Save our
Climate Act of 2011, H. R. 3242, 112th Cong., 1st Sess.
“The importance of the issue,” along with the fact that the
same basic scheme EPA adopted “has been the subject of an
earnest and profound debate across the country, . . . makes
the oblique form of the claimed delegation all the more sus-
pect.” Gonzales, 546 U. S., at 267–268 (internal quotation
marks omitted).
C
Given these circumstances, our precedent counsels skep-
ticism toward EPA’s claim that Section 111 empowers it to
devise carbon emissions caps based on a generation shifting
approach. To overcome that skepticism, the Government
must—under the major questions doctrine—point to “clear
congressional authorization” to regulate in that manner.
Utility Air, 573 U. S., at 324.
All the Government can offer, however, is the Agency’s
authority to establish emissions caps at a level reflecting
“the application of the best system of emission reduction . . .
adequately demonstrated.” 42 U. S. C. §7411(a)(1). As a
matter of “definitional possibilities,” FCC v. AT&T Inc., 562
U. S. 397, 407 (2011), generation shifting can be described
as a “system”—“an aggregation or assemblage of objects
united by some form of regular interaction,” Brief for Fed-
eral Respondents 31—capable of reducing emissions. But
of course almost anything could constitute such a “system”;
shorn of all context, the word is an empty vessel. Such a
vague statutory grant is not close to the sort of clear author-
ization required by our precedents.
The Government, echoed by the other respondents, looks
to other provisions of the Clean Air Act for support. It
Cite as: 597 U. S. ____ (2022) 29
Opinion of the Court
points out that the Act elsewhere uses the word “system” or
“similar words” to describe cap-and-trade schemes or other
sector-wide mechanisms for reducing pollution. Ibid. The
Acid Rain program set out in Title IV of the Act establishes
a cap-and-trade scheme for reducing sulfur dioxide emis-
sions, which the statute refers to as an “emission allocation
and transfer system.” §7651(b) (emphasis added). And Sec-
tion 110 of the NAAQS program specifies that “marketable
permits” and “auctions of emissions rights” qualify as “con-
trol measures, means, or techniques” that States may adopt
in their state implementation plans in order “to meet the
applicable requirements of ” a NAAQS. §7410(a)(2)(A). If
the word “system” or similar words like “technique” or
“means” can encompass cap-and-trade, the Government
maintains, why not in Section 111?
But just because a cap-and-trade “system” can be used to
reduce emissions does not mean that it is the kind of “sys-
tem of emission reduction” referred to in Section 111. In-
deed, the Government’s examples demonstrate why it is
not.
First, unlike Section 111, the Acid Rain and NAAQS pro-
grams contemplate trading systems as a means of comply-
ing with an already established emissions limit, set either
directly by Congress (as with Acid Rain, see 42 U. S. C.
§7651c) or by reference to the safe concentration of the pol-
lutant in the ambient air (as with the NAAQS). In Section
111, by contrast, it is EPA’s job to come up with the cap
itself: the “numerical limit on emissions” that States must
apply to each source. 80 Fed. Reg. 64768. We doubt that
Congress directed the Agency to set an emissions cap at the
level “which reflects the degree of emission limitation
achievable through the application of [a cap-and-trade] sys-
tem,” §7411(a)(1), for that degree is indeterminate. It is one
thing for Congress to authorize regulated sources to use
trading to comply with a preset cap, or a cap that must be
based on some scientific, objective criterion, such as the
30 WEST VIRGINIA v. EPA
Opinion of the Court
NAAQS. It is quite another to simply authorize EPA to set
the cap itself wherever the Agency sees fit.
Second, Congress added the above authorizations for the
use of emissions trading programs in 1990, simultaneous
with amending Section 111 to its present form. At the time,
cap-and-trade was a novel and highly touted concept. The
Acid Rain program was “the nation’s first-ever emissions
trading program.” L. Heinzerling & R. Steinzor, A Perfect
Storm: Mercury and the Bush Administration, 34 Env.
L. Rep. 10297, 10309 (2004). And Congress went out of its
way to amend the NAAQS statute to make absolutely clear
that the “measures, means, [and] techniques” States could
use to meet the NAAQS included cap-and-trade.
§7410(a)(2)(A). Yet “not a peep was heard from Congress
about the possibility that a trading regime could be in-
stalled under §111.” Id., at 10309.
Finally, the Government notes that other parts of the
Clean Air Act, past and present, have “explicitly limited the
permissible components of a particular ‘system’ ” of emis-
sion reduction in some regard. Brief for Federal Respond-
ents 32. For instance, a separate section of the statute em-
powers EPA to require the “degree of reduction achievable
through the retrofit application of the best system of contin-
uous emission reduction.” §7651f(b)(2) (emphasis added).
The comparatively unadorned use of the phrase “best sys-
tem of emission reduction” in Section 111, the Government
urges, “suggest[s] a conscious congressional” choice not to
limit the measures that may constitute the BSER to those
applicable at or to an individual source. Id., at 32.
These arguments, however, concern an interpretive ques-
tion that is not at issue. We have no occasion to decide
whether the statutory phrase “system of emission reduc-
tion” refers exclusively to measures that improve the pollu-
tion performance of individual sources, such that all other
actions are ineligible to qualify as the BSER. To be sure, it
is pertinent to our analysis that EPA has acted consistent
Cite as: 597 U. S. ____ (2022) 31
Opinion of the Court
with such a limitation for the first four decades of the stat-
ute’s existence. But the only interpretive question before
us, and the only one we answer, is more narrow: whether
the “best system of emission reduction” identified by EPA
in the Clean Power Plan was within the authority granted
to the Agency in Section 111(d) of the Clean Air Act. For
the reasons given, the answer is no.5
* * *
Capping carbon dioxide emissions at a level that will
force a nationwide transition away from the use of coal to
generate electricity may be a sensible “solution to the crisis
of the day.” New York v. United States, 505 U. S. 144, 187
(1992). But it is not plausible that Congress gave EPA the
authority to adopt on its own such a regulatory scheme in
Section 111(d). A decision of such magnitude and conse-
quence rests with Congress itself, or an agency acting pur-
suant to a clear delegation from that representative body.
The judgment of the Court of Appeals for the District of Co-
lumbia Circuit is reversed, and the cases are remanded for
further proceedings consistent with this opinion.
It is so ordered.
——————
5 We find it odd that the dissent accuses us of champing at the bit to
“constrain EPA’s efforts to address climate change,” post, at 4, yet also
chides us for “mak[ing] no effort” to opine—in what would be plain
dicta—on “how far [our] opinion constrain[s] EPA,” post, at 12.
Cite as: 597 U. S. ____ (2022) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1530, 20–1531, 20–1778 and 20–1780
_________________
WEST VIRGINIA, ET AL., PETITIONERS
20–1530 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
THE NORTH AMERICAN COAL CORPORATION,
PETITIONER
20–1531 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
WESTMORELAND MINING HOLDINGS LLC,
PETITIONER
20–1778 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
NORTH DAKOTA, PETITIONER
20–1780 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 30, 2022]
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, con-
curring.
To resolve today’s case the Court invokes the major ques-
tions doctrine. Under that doctrine’s terms, administrative
agencies must be able to point to “ ‘clear congressional au-
thorization’ ” when they claim the power to make decisions
of vast “ ‘economic and political significance.’ ” Ante, at 17,
19. Like many parallel clear-statement rules in our law,
this one operates to protect foundational constitutional
2 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
guarantees. I join the Court’s opinion and write to offer
some additional observations about the doctrine on which it
rests.
I
A
One of the Judiciary’s most solemn duties is to ensure
that acts of Congress are applied in accordance with the
Constitution in the cases that come before us. To help fulfill
that duty, courts have developed certain “clear-statement”
rules. These rules assume that, absent a clear statement
otherwise, Congress means for its laws to operate in con-
gruence with the Constitution rather than test its bounds.
In this way, these clear-statement rules help courts “act as
faithful agents of the Constitution.” A. Barrett, Substan-
tive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 169
(2010) (Barrett).
Consider some examples. The Constitution prohibits
Congress from passing laws imposing various types of ret-
roactive liability. See Art. I, § 9; Landgraf v. USI Film
Products, 511 U. S. 244, 265–266 (1994). Consistent with
this rule, Chief Justice Marshall long ago advised that “a
court . . . ought to struggle hard against a [statutory] con-
struction which will, by a retrospective operation, affect the
rights of parties.” United States v. Schooner Peggy,
1 Cranch 103, 110 (1801). Justice Paterson likewise in-
sisted that courts must interpret statutes to apply only pro-
spectively “unless they are so clear, strong, and imperative,
that no other meaning can be annexed to them.” United
States v. Heth, 3 Cranch 399, 413 (1806).
The Constitution also incorporates the doctrine of sover-
eign immunity. See, e.g., Hans v. Louisiana, 134 U. S. 1,
12–17 (1890). To enforce that doctrine, courts have consist-
ently held that “nothing but express words, or an insur-
mountable implication” would justify the conclusion that
Cite as: 597 U. S. ____ (2022) 3
GORSUCH, J., concurring
lawmakers intended to abrogate the States’ sovereign im-
munity. Chisholm v. Georgia, 2 Dall. 419, 450 (1793) (Ire-
dell, J., dissenting); see Seminole Tribe of Fla. v. Florida,
517 U. S. 44, 55 (1996). In a similar vein, Justice Story ob-
served that “[i]t is a general rule in the interpretation of
legislative acts not to construe them to embrace the sover-
eign power or government, unless expressly named or in-
cluded by necessary implication.” United States v. Greene,
26 F. Cas. 33, 34 (No. 15, 258) (CC Me. 1827).
The major questions doctrine works in much the same
way to protect the Constitution’s separation of powers.
Ante, at 19. In Article I, “the People” vested “[a]ll” federal
“legislative powers . . . in Congress.” Preamble; Art. I, § 1.
As Chief Justice Marshall put it, this means that “im-
portant subjects . . . must be entirely regulated by the leg-
islature itself,” even if Congress may leave the Executive
“to act under such general provisions to fill up the details.”
Wayman v. Southard, 10 Wheat. 1, 42–43 (1825). Doubt-
less, what qualifies as an important subject and what con-
stitutes a detail may be debated. See, e.g., Gundy v. United
States, 588 U. S. ___, ___–___ (2019) (plurality opinion) (slip
op., at 4–6); id., at ___–___ (GORSUCH, J., dissenting) (slip
op., at 10–12). But no less than its rules against retroactive
legislation or protecting sovereign immunity, the Constitu-
tion’s rule vesting federal legislative power in Congress is
“vital to the integrity and maintenance of the system of gov-
ernment ordained by the Constitution.” Marshall Field &
Co. v. Clark, 143 U. S. 649, 692 (1892).
It is vital because the framers believed that a republic—
a thing of the people—would be more likely to enact just
laws than a regime administered by a ruling class of largely
unaccountable “ministers.” The Federalist No. 11, p. 85 (C.
Rossiter ed. 1961) (A. Hamilton). From time to time, some
4 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
have questioned that assessment.1 But by vesting the law-
making power in the people’s elected representatives, the
Constitution sought to ensure “not only that all power
[w]ould be derived from the people,” but also “that those
[e]ntrusted with it should be kept in dependence on the peo-
ple.” Id., No. 37, at 227 (J. Madison). The Constitution, too,
placed its trust not in the hands of “a few, but [in] a number
of hands,” ibid., so that those who make our laws would bet-
ter reflect the diversity of the people they represent and
have an “immediate dependence on, and an intimate sym-
pathy with, the people.” Id., No. 52, at 327 (J. Madison).
Today, some might describe the Constitution as having de-
signed the federal lawmaking process to capture the wis-
dom of the masses. See P. Hamburger, Is Administrative
Law Unlawful? 502–503 (2014).
Admittedly, lawmaking under our Constitution can be
difficult. But that is nothing particular to our time nor any
accident. The framers believed that the power to make new
laws regulating private conduct was a grave one that could,
if not properly checked, pose a serious threat to individual
liberty. See The Federalist No. 48, at 309–312 (J. Madison);
see also id., No. 73, at 441–442 (A. Hamilton). As a result,
——————
1 For example, Woodrow Wilson famously argued that “popular sover-
eignty” “embarrasse[d]” the Nation because it made it harder to achieve
“executive expertness.” The Study of Administration, 2 Pol. Sci. Q. 197,
207 (1887) (Administration). In Wilson’s eyes, the mass of the people
were “selfish, ignorant, timid, stubborn, or foolish.” Id., at 208. He ex-
pressed even greater disdain for particular groups, defending “[t]he
white men of the South” for “rid[ding] themselves, by fair means or foul,
of the intolerable burden of governments sustained by the votes of igno-
rant [African-Americans].” 9 W. Wilson, History of the American People
58 (1918). He likewise denounced immigrants “from the south of Italy
and men of the meaner sort out of Hungary and Poland,” who possessed
“neither skill nor energy nor any initiative of quick intelligence.” 5 id.,
at 212. To Wilson, our Republic “tr[ied] to do too much by vote.” Admin-
istration 214.
Cite as: 597 U. S. ____ (2022) 5
GORSUCH, J., concurring
the framers deliberately sought to make lawmaking diffi-
cult by insisting that two houses of Congress must agree to
any new law and the President must concur or a legislative
supermajority must override his veto.
The difficulty of the design sought to serve other ends too.
By effectively requiring a broad consensus to pass legisla-
tion, the Constitution sought to ensure that any new laws
would enjoy wide social acceptance, profit from input by an
array of different perspectives during their consideration,
and thanks to all this prove stable over time. See id., No.
10, at 82–84 (J. Madison). The need for compromise inher-
ent in this design also sought to protect minorities by en-
suring that their votes would often decide the fate of pro-
posed legislation—allowing them to wield real power
alongside the majority. See id., No. 51, at 322–324 (J. Mad-
ison). The difficulty of legislating at the federal level aimed
as well to preserve room for lawmaking “by governments
more local and more accountable than a distant federal” au-
thority, National Federation of Independent Business v.
Sebelius, 567 U. S. 519, 536 (2012) (plurality opinion), and
in this way allow States to serve as “laborator[ies]” for
“novel social and economic experiments,” New State Ice Co.
v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dis-
senting); see J. Sutton, 51 Imperfect Solutions: States and
the Making of American Constitutional Law 11 (2018).
Permitting Congress to divest its legislative power to the
Executive Branch would “dash [this] whole scheme.” De-
partment of Transportation v. Association of American Rail-
roads, 575 U. S. 43, 61 (2015) (ALITO, J., concurring). Leg-
islation would risk becoming nothing more than the will of
the current President, or, worse yet, the will of unelected
officials barely responsive to him. See S. Breyer, Making
Our Democracy Work: A Judge’s View 110 (2010) (“[T]he
president may not have the time or willingness to review
[agency] decisions”). In a world like that, agencies could
churn out new laws more or less at whim. Intrusions on
6 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
liberty would not be difficult and rare, but easy and profuse.
See The Federalist No. 47, at 303 (J. Madison); id., No. 62,
at 378 (J. Madison). Stability would be lost, with vast num-
bers of laws changing with every new presidential admin-
istration. Rather than embody a wide social consensus and
input from minority voices, laws would more often bear the
support only of the party currently in power. Powerful spe-
cial interests, which are sometimes “uniquely” able to influ-
ence the agendas of administrative agencies, would flourish
while others would be left to ever-shifting winds. T. Merrill,
Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent
L. Rev. 1039, 1043 (1997). Finally, little would remain to
stop agencies from moving into areas where state authority
has traditionally predominated. See, e.g., Solid Waste
Agency of Northern Cook Cty. v. Army Corps of Engineers,
531 U. S. 159, 173–174 (2001) (SWANC). That would be a
particularly ironic outcome, given that so many States have
robust nondelegation doctrines designed to ensure demo-
cratic accountability in their state lawmaking processes.
See R. May, The Nondelegation Doctrine is Alive and Well
in the States, The Reg. Rev. (Oct. 15, 2020).
B
Much as constitutional rules about retroactive legislation
and sovereign immunity have their corollary clear-state-
ment rules, Article I’s Vesting Clause has its own: the ma-
jor questions doctrine. See Gundy, 588 U. S., at ___–___
(GORSUCH, J., dissenting) (slip op., at 20–21). Some version
of this clear-statement rule can be traced to at least 1897,
when this Court confronted a case involving the Interstate
Commerce Commission, the federal government’s “first
modern regulatory agency.” S. Dudley, Milestones in the
Evolution of the Administrative State 3 (Nov. 2020). The
ICC argued that Congress had endowed it with the power
to set carriage prices for railroads. See ICC v. Cincinnati,
N. O. & T. P. R. Co., 167 U. S. 479, 499 (1897). The Court
Cite as: 597 U. S. ____ (2022) 7
GORSUCH, J., concurring
deemed that claimed authority “a power of supreme deli-
cacy and importance,” given the role railroads then played
in the Nation’s life. Id., at 505. Therefore, the Court ex-
plained, a special rule applied:
“That Congress has transferred such a power to any ad-
ministrative body is not to be presumed or implied from
any doubtful and uncertain language. The words and
phrases efficacious to make such a delegation of power
are well understood, and have been frequently used,
and if Congress had intended to grant such a power to
the [agency], it cannot be doubted that it would have
used language open to no misconstruction, but clear
and direct.” Ibid. (emphasis added).
With the explosive growth of the administrative state
since 1970, the major questions doctrine soon took on spe-
cial importance.2 In 1980, this Court held it “unreasonable
to assume” that Congress gave an agency “unprecedented
power[s]” in the “absence of a clear [legislative] mandate.”
Industrial Union Dept., AFL–CIO v. American Petroleum
Institute, 448 U. S. 607, 645 (plurality opinion). In the
years that followed, the Court routinely enforced “the non-
delegation doctrine” through “the interpretation of statu-
——————
2 In the 1960s and 1970s, Congress created dozens of new federal ad-
ministrative agencies. See W. Howell & D. Lewis, Agencies by Presiden-
tial Design, 64 J. of Politics 1095, 1105 (Nov. 2002). Between 1970 and
1990, the Code of Federal Regulations grew from about 44,000 pages to
about 106,000. See C. DeMuth, Can the Administrative State be
Tamed?, 8 J. Legal Analysis 121, 126 (Feb. 2016). Today, Congress is-
sues “roughly two hundred to four hundred laws” every year, while “fed-
eral administrative agencies adopt something on the order of three thou-
sand to five thousand final rules.” R. Cass, Rulemaking Then and Now:
From Management to Lawmaking, 28 Geo. Mason L. Rev. 683, 694
(2021). Beyond that, agencies regularly “produce thousands, if not mil-
lions,” of guidance documents which, as a practical matter, bind affected
parties too. See C. Coglianese, Illuminating Regulatory Guidance, 9
Mich. J. Env. & Admin. L. 243, 247–248 (2020).
8 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
tory texts, and, more particularly, [by] giving narrow con-
structions to statutory delegations that might otherwise be
thought to be unconstitutional.” Mistretta v. United States,
488 U. S. 361, 373, n. 7 (1989). In fact, this Court applied
the major questions doctrine in “all corners of the adminis-
trative state,” whether the issue at hand involved an
agency’s asserted power to regulate tobacco products, ban
drugs used in physician-assisted suicide, extend Clean Air
Act regulations to private homes, impose an eviction mora-
torium, or enforce a vaccine mandate. Ante, at 17; see FDA
v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160
(2000); Gonzales v. Oregon, 546 U. S. 243, 267 (2006); Util-
ity Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014);
Alabama Assn. of Realtors v. Department of Health and Hu-
man Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op.,
at 6); National Federation of Independent Business v.
OSHA, 595 U. S. ___, ___ (2022) (per curiam) (slip op.,
at 6).3
The Court has applied the major questions doctrine for
the same reason it has applied other similar clear-state-
ment rules—to ensure that the government does “not inad-
vertently cross constitutional lines.” Barrett 175. And the
constitutional lines at stake here are surely no less im-
portant than those this Court has long held sufficient to jus-
tify parallel clear-statement rules. At stake is not just a
question of retroactive liability or sovereign immunity, but
basic questions about self-government, equality, fair notice,
——————
3 At times, this Court applied the major questions doctrine more like
an ambiguity canon. See FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120, 159 (2000). Ambiguity canons merely instruct courts on
how to “choos[e] between equally plausible interpretations of ambiguous
text,” and are thus weaker than clear-statement rules. Barrett 109. But
our precedents have usually applied the doctrine as a clear-statement
rule, and the Court today confirms that is the proper way to apply it. See
ante, at 19–20, 28.
Cite as: 597 U. S. ____ (2022) 9
GORSUCH, J., concurring
federalism, and the separation of powers. See Part I–A, su-
pra. The major questions doctrine seeks to protect against
“unintentional, oblique, or otherwise unlikely” intrusions
on these interests. NFIB v. OSHA, 595 U. S., at ___
(GORSUCH, J., concurring) (slip op., at 5). The doctrine does
so by ensuring that, when agencies seek to resolve major
questions, they at least act with clear congressional author-
ization and do not “exploit some gap, ambiguity, or doubtful
expression in Congress’s statutes to assume responsibilities
far beyond” those the people’s representatives actually con-
ferred on them. Ibid. As the Court aptly summarizes it
today, the doctrine addresses “a particular and recurring
problem: agencies asserting highly consequential power be-
yond what Congress could reasonably be understood to
have granted.” Ante, at 20.
II
A
Turning from the doctrine’s function to its application, it
seems to me that our cases supply a good deal of guidance
about when an agency action involves a major question for
which clear congressional authority is required.
First, this Court has indicated that the doctrine applies
when an agency claims the power to resolve a matter of
great “political significance,” NFIB v. OSHA, 595 U. S., at
___ (slip op., at 6) (internal quotation marks omitted), or
end an “earnest and profound debate across the country,”
Gonzales, 546 U. S., at 267–268 (internal quotation marks
omitted); see ante, at 17. So, for example, in Gonzales, the
Court found that the doctrine applied when the Attorney
General issued a regulation that would have effectively
banned most forms of physician-assisted suicide even as
certain States were considering whether to permit the prac-
tice. 546 U. S., at 267. And in NFIB v. OSHA, the Court
held the doctrine applied when an agency sought to man-
date COVID–19 vaccines nationwide for most workers at a
10 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
time when Congress and state legislatures were engaged in
robust debates over vaccine mandates. 595 U. S., at ___
(slip op., at 5); id., at ___ (GORSUCH, J., concurring) (slip op.,
at 3). Relatedly, this Court has found it telling when Con-
gress has “ ‘considered and rejected’ ” bills authorizing
something akin to the agency’s proposed course of action.
Ante, at 20, 27 (quoting Brown & Williamson, 529 U. S., at
144). That too may be a sign that an agency is attempting
to “ ‘work [a]round’ ” the legislative process to resolve for it-
self a question of great political significance. NFIB v.
OSHA, 595 U. S., at ___ (GORSUCH, J., concurring) (slip op.,
at 3).4
Second, this Court has said that an agency must point to
clear congressional authorization when it seeks to regulate
“ ‘a significant portion of the American economy,’ ” ante, at
18 (quoting Utility Air, 573 U. S., at 324), or require “bil-
lions of dollars in spending” by private persons or entities,
King v. Burwell, 576 U. S. 473, 485 (2015). The Court has
held that regulating tobacco products, eliminating rate reg-
ulation in the telecommunications industry, subjecting pri-
vate homes to Clean Air Act restrictions, and suspending
local housing laws and regulations can sometimes check
this box. See Brown & Williamson, 529 U. S., at 160; MCI
Telecommunications Corp. v. American Telephone & Tele-
graph Co., 512 U. S. 218, 231 (1994) (MCI); Utility Air, 573
U. S., at 324; Alabama Assn. of Realtors, 594 U. S., at ___
(slip op., at 6).
——————
4 In the dissent’s view, the Court has erred both today and in the past
by pointing to failed legislation. Post, at 27–28 (opinion of KAGAN, J.).
But the Court has not pointed to failed legislation to resolve what a duly
enacted statutory text means, only to help resolve the antecedent ques-
tion whether the agency’s challenged action implicates a major question.
The dissent endorses looking to extrinsic evidence to resolve that ques-
tion too. See post, at 21–22 (discussing whether there is a “mismatch”
between an agency’s expertise and its challenged action).
Cite as: 597 U. S. ____ (2022) 11
GORSUCH, J., concurring
Third, this Court has said that the major questions doc-
trine may apply when an agency seeks to “intrud[e] into an
area that is the particular domain of state law.” Ibid. Of
course, another longstanding clear-statement rule—the
federalism canon—also applies in these situations. To pre-
serve the “proper balance between the States and the Fed-
eral Government” and enforce limits on Congress’s Com-
merce Clause power, courts must “ ‘be certain of Congress’s
intent’ ” before finding that it “legislate[d] in areas tradi-
tionally regulated by the States.” Gregory v. Ashcroft, 501
U. S. 452, 459–460 (1991). But unsurprisingly, the major
questions doctrine and the federalism canon often travel to-
gether. When an agency claims the power to regulate vast
swaths of American life, it not only risks intruding on Con-
gress’s power, it also risks intruding on powers reserved to
the States. See SWANC, 531 U. S., at 162, 174.
While this list of triggers may not be exclusive, each of
the signs the Court has found significant in the past is pre-
sent here, making this a relatively easy case for the doc-
trine’s application. The EPA claims the power to force coal
and gas-fired power plants “to cease [operating] altogether.”
Ante, at 24. Whether these plants should be allowed to op-
erate is a question on which people today may disagree, but
it is a question everyone can agree is vitally important. See
ante, at 24–25. Congress has debated the matter fre-
quently. Ibid.; see generally Climate Change, The History
of a Consensus and the Causes of Inaction, Hearing before
the Subcommittee on Environment of the House Committee
on Oversight and Reform, 116th Cong., 1st Sess., pt. I
(2019). And so far it has “conspicuously and repeatedly de-
clined” to adopt legislation similar to the Clean Power Plan
(CPP). Ante, at 20; see American Lung Assn. v. EPA, 985
F. 3d 914, 998, n. 19 (CADC 2021) (Walker, J., concurring
in part, concurring in judgment in part, and dissenting in
part) (cataloguing failed legislative proposals); cf. Brown &
12 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
Williamson, 529 U. S., at 144. It seems that fact has frus-
trated the Executive Branch and led it to attempt its own
regulatory solution in the CPP. See 985 F. 3d, at 998, n. 20
(President stating that “ ‘if Congress won’t act soon . . . I
will’ ”); cf. United States Telecom Assn. v. FCC, 855 F. 3d
381, 423–424 (CADC 2017) (Kavanaugh, J., dissenting from
denial of rehearing en banc) (noting a “President’s interven-
tion [may] underscor[e] the enormous significance” of a reg-
ulation).
Other suggestive factors are present too. “The electric
power sector is among the largest in the U. S. economy,
with links to every other sector.” N. Richardson, Keeping
Big Cases From Making Bad Law: The Resurgent “Major
Questions” Doctrine, 49 Conn. L. Rev. 355, 388 (2016). The
Executive Branch has acknowledged that its proposed rule
would force an “aggressive transformation” of the electricity
sector through “transition to zero-carbon renewable energy
sources.” White House Fact Sheet, App. in American Lung
Assn. v. EPA, No. 19–1140 (CADC), pp. 2076–2077. The
Executive Branch has also predicted its rule would force
dozens of power plants to close and eliminate thousands of
jobs by 2025. See EPA, Regulatory Impact Analysis for the
Clean Power Plan Final Rule 3–27, 3–30, 3–33, 6–25 (Oct.
23, 2015). And industry analysts have estimated the CPP
would cause consumers’ electricity costs to rise by over $200
billion. See National Mining Assn., EPA’s Clean Power
Plan: An Economic Impact Analysis 2, 4 (2015). Finally, the
CPP unquestionably has an impact on federalism, as “the
regulation of utilities is one of the most important of the
functions traditionally associated with the police power of
the States.” Arkansas Elec. Cooperative Corp. v. Arkansas
Pub. Serv. Comm’n, 461 U. S. 375, 377 (1983). None of this
is to say the policy the agency seeks to pursue is unwise or
should not be pursued. It is only to say that the agency
seeks to resolve for itself the sort of question normally re-
served for Congress. As a result, we look for clear evidence
Cite as: 597 U. S. ____ (2022) 13
GORSUCH, J., concurring
that the people’s representatives in Congress have actually
afforded the agency the power it claims.
B
At this point, the question becomes what qualifies as a
clear congressional statement authorizing an agency’s ac-
tion. Courts have long experience applying clear-statement
rules throughout the law, and our cases have identified sev-
eral telling clues in this context too.
First, courts must look to the legislative provisions on
which the agency seeks to rely “ ‘with a view to their place
in the overall statutory scheme.’ ” Brown & Williamson,
529 U. S., at 133. “[O]blique or elliptical language” will not
supply a clear statement. Ante, at 18; see Spector v. Nor-
wegian Cruise Line Ltd., 545 U. S. 119, 139 (2005) (plural-
ity opinion) (cautioning against reliance on “broad or gen-
eral language”). Nor may agencies seek to hide “elephants
in mouseholes,” Whitman v. American Trucking Assns.,
Inc., 531 U. S. 457, 468 (2001), or rely on “gap filler” provi-
sions, ante, at 20. So, for example, in MCI this Court re-
jected the Federal Communication Commission’s attempt
to eliminate rate regulation for the telecommunications in-
dustry based on a “subtle” provision that empowered the
FCC to “ ‘modify’ ” rates. 512 U. S., at 231. In Brown &
Williamson, the Court rejected the Food and Drug Admin-
istration’s attempt to regulate cigarettes based a “cryptic”
statutory provision that granted the agency the power to
regulate “drugs” and “devices.” 529 U. S., at 126, 156, 160.
And in Gonzales, the Court doubted that Congress gave the
Attorney General “broad and unusual authority” to regu-
late drugs for physician-assisted suicide through “oblique”
statutory language. 546 U. S., at 267.
Second, courts may examine the age and focus of the stat-
ute the agency invokes in relation to the problem the agency
seeks to address. As the Court puts it today, it is unlikely
14 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
that Congress will make an “[e]xtraordinary gran[t] of reg-
ulatory authority” through “vague language” in “ ‘a long-ex-
tant statute.’ ” Ante, at 18–20 (quoting Utility Air, 573
U. S., at 324). Recently, too, this Court found a clear state-
ment lacking when OSHA sought to impose a nationwide
COVID–19 vaccine mandate based on a statutory provision
that was adopted 40 years before the pandemic and that fo-
cused on conditions specific to the workplace rather than a
problem faced by society at large. See NFIB v. OSHA, 595
U. S., at ___ (GORSUCH, J., concurring) (slip op., at 3). Of
course, sometimes old statutes may be written in ways that
apply to new and previously unanticipated situations. See
Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985).
But an agency’s attempt to deploy an old statute focused on
one problem to solve a new and different problem may also
be a warning sign that it is acting without clear congres-
sional authority. See ante, at 18.
Third, courts may examine the agency’s past interpreta-
tions of the relevant statute. See ante, at 20–21. A “con-
temporaneous” and long-held Executive Branch interpreta-
tion of a statute is entitled to some weight as evidence of
the statute’s original charge to an agency. United States v.
Philbrick, 120 U. S. 52, 59 (1887). Conversely, in NFIB v.
OSHA, the Court found it “telling that OSHA, in its half
century of existence, ha[d] never before adopted a broad
public health regulation” under the statute that the agency
sought to invoke as authority for a nationwide vaccine man-
date. 595 U. S., at ___ (slip op., at 8); ante, at 18; see also
Brown & Williamson, 529 U. S., at 158–159 (noting that for
decades the FDA had said it lacked statutory power to reg-
ulate cigarettes). As the Court states today, “ ‘the want of
[an] assertion of power by those who presumably would be
alert’ ” to it is “ ‘significant in determining whether such
power was actually conferred.’ ” Ante, at 21. When an
agency claims to have found a previously “unheralded
power,” its assertion generally warrants “a measure of
Cite as: 597 U. S. ____ (2022) 15
GORSUCH, J., concurring
skepticism.” Utility Air, 573 U. S., at 324.
Fourth, skepticism may be merited when there is a mis-
match between an agency’s challenged action and its con-
gressionally assigned mission and expertise. Ante, at 25.
As the Court explains, “[w]hen an agency has no compara-
tive expertise in making certain policy judgments, . . . Con-
gress presumably would not task it with doing so.” Ibid.
(internal quotation marks and alterations omitted). So, for
example, in Alabama Assn. of Realtors, this Court rejected
an attempt by a public health agency to regulate housing.
594 U. S., at ___ (slip op., at 5). And in NFIB v. OSHA, the
Court rejected an effort by a workplace safety agency to or-
dain “broad public health measures” that “f[ell] outside [its]
sphere of expertise.” 595 U. S., at ___ (slip op., at 6).5
Asking these questions again yields a clear answer in our
case. See ante, at 28–31. As the Court details, the agency
before us cites no specific statutory authority allowing it to
transform the Nation’s electrical power supply. See ante,
at 28. Instead, the agency relies on a rarely invoked statu-
tory provision that was passed with little debate and has
been characterized as an “obscure, never-used section of the
law.” Ante, at 6 (internal quotation marks omitted). Nor
has the agency previously interpreted the relevant provi-
sion to confer on it such vast authority; there is no original,
longstanding, and consistent interpretation meriting judi-
——————
5 The dissent not only agrees that a mismatch between an agency’s ex-
pertise and its challenged action is relevant to the major questions doc-
trine analysis; the dissent suggests that such a mismatch is necessary to
the doctrine’s application. See post, at 14–15. But this Court has never
taken that view. See, e.g., ICC v. Cincinnati, N. O. & T. P. R. Co., 167
U. S. 479, 505 (1897) (interstate commerce agency regulating interstate
railroad commerce); Industrial Union Dept., AFL–CIO v. American Pe-
troleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion) (workplace
safety agency regulating workplace carcinogens); Brown & Williamson,
529 U. S., at 159–160 (drug agency regulating tobacco); King v. Burwell,
576 U. S. 473, 485–486 (2015) (tax agency administering tax credits).
16 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
cial respect. See ante, at 20–22. Finally, there is a “mis-
match” between the EPA’s expertise over environmental
matters and the agency’s claim that “Congress implicitly
tasked it, and it alone, with balancing the many vital con-
siderations of national policy implicated in deciding how
Americans will get their energy.” Ante, at 25. Such a
claimed power “requires technical and policy expertise not
traditionally needed in [the] EPA’s regulatory develop-
ment.” Ibid. (internal quotation marks omitted). Again, in
observing this much, the Court does not purport to pass on
the wisdom of the agency’s course. It acknowledges only
that agency officials have sought to resolve a major policy
question without clear legislative authorization to do so.
III
In places, the dissent seems to suggest that we should not
be unduly “ ‘concerned’ ” with the Constitution’s assignment
of the legislative power to Congress. Post, at 29 (opinion of
KAGAN, J.). Echoing Woodrow Wilson, the dissent seems to
think “a modern Nation” cannot afford such sentiments.
Post, at 29–31. But recently, our dissenting colleagues
acknowledged that the Constitution assigns “all legislative
Powers” to Congress and “bar[s their] further delegation.”
Gundy, 588 U. S., at ___ (plurality opinion of KAGAN, J.)
(slip op., at 4) (internal quotation marks and alteration
omitted). To be sure, in that case we disagreed about the
exact nature of the “nondelegation inquiry” courts must em-
ploy to vindicate the Constitution. Id., at ___ (slip op., at
5). But like Chief Justice Marshall, we all recognized that
the Constitution does impose some limits on the delegation
of legislative power. See ibid.; Wayman, 10 Wheat., at 42–
43. And while we all agree that administrative agencies
have important roles to play in a modern nation, surely
none of us wishes to abandon our Republic’s promise that
the people and their representatives should have a mean-
Cite as: 597 U. S. ____ (2022) 17
GORSUCH, J., concurring
ingful say in the laws that govern them. Cf. Rucho v. Com-
mon Cause, 588 U. S. ___, ___ (2019) (KAGAN, J., dissenting)
(slip op., at 7) (“Republican liberty demands not only, that
all power should be derived from the people; but that those
entrusted with it should be kept in dependence on the peo-
ple” (internal quotation marks and alteration omitted)).6
So what is our real point of disagreement? The dissent
next suggests that the Court strays from its commitment to
textualism by relying on a clear-statement rule (the major
questions doctrine) to resolve today’s case. Post, at 28. But
our law is full of clear-statement rules and has been since
the founding. Our colleagues do not dispute the point. In
fact, they have regularly invoked many of these rules.7
——————
6 In the course of its argument, the dissent leans heavily on two recent
academic articles. Post, at 29. But if a battle of law reviews were the
order of the day, it might be worth adding to the reading list. See, e.g.,
I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1493–
1494 (2021); D. Candeub, Preference and Administrative Law, 72 Admin.
L. Rev. 607, 614–628 (2020); P. Hamburger, Delegation or Divesting?,
115 Nw. L. Rev. Online 88, 91–110 (2020); M. McConnell, The President
Who Would Not Be King 326–335 (2020); A. Gordon, Nondelegation, 12
N. Y. U. J. L. & Liberty 718, 719 (2019); R. Cass, Delegation Reconsid-
ered: A Delegation Doctrine for the Modern Administrative State, 40
Harv. J. L. & Pub. Pol’y 147, 155–161 (2017); G. Lawson & G. Seidman,
“A Great Power of Attorney:” Understanding the Fiduciary Constitution
104–129 (2017); P. Hamburger, Is Administrative Law Unlawful? 377–
402 (2014); L. Alexander & S. Prakash, Reports of the Nondelegation
Doctrine’s Death are Greatly Exaggerated, 70 U. Chi. L. Rev. 1297,
1298–1299 (2003); G. Lawson, Delegation and Original Meaning, 88 Va.
L. Rev. 327, 335–343 (2002); D. Schoenbrod, The Delegation Doctrine:
Could the Court Give It Substance? 83 Mich. L. Rev. 1223, 1252–1255,
1260–1261 (1985); see generally P. Wallison & J. Yoo, The Administra-
tive State Before the Supreme Court: Perspectives on the Nondelegation
Doctrine (2022).
7 See, e.g., United States v. Washington, 596 U. S. ___, ___ (2022) (slip
op., at 6) (intergovernmental immunity); Rehaif v. United States, 588
U. S. ___, ___ (2019) (slip op., at 3) (mens rea); Michigan v. Bay Mills
Indian Community, 572 U. S. 782, 790–791 (2014) (sovereign immunity);
Vartelas v. Holder, 566 U. S. 257, 261, 266–267 (2012) (retroactivity);
Gonzalez v. Thaler, 565 U. S. 134, 141–142 (2012) (presumption against
18 WEST VIRGINIA v. EPA
GORSUCH, J., concurring
If that’s not the problem, perhaps the dissent means to
suggest that the major questions doctrine does not belong
on the list of our clear-statement rules. At times, the dis-
sent appears to dismiss the doctrine as a “get-out-of-text
free car[d].” Ibid. The dissent even seems to suggest that
the doctrine could threaten “the safety and efficacy of med-
ications” or lead to “the routine adulteration of food.” Post,
at 31. But then again, the dissent also acknowledges that
the major questions doctrine should “sensibl[y]” apply in at
least some situations. Post, at 14–15. The dissent even fa-
vorably highlights one application of the doctrine that our
colleagues criticized less than a year ago. See post, at 18
(citing Alabama Assn. of Realtors, 594 U. S. ___). And, of
course, our colleagues have joined other applications of the
major questions doctrine in the past. See, e.g., King, 576
U. S., at 485–486; Gonzales, 546 U. S., at 267–268. Nor
does the dissent really seem to dispute that a major ques-
tion is at stake in this case. As the dissent observes, the
agency’s challenged action before us concerns one of “the
greatest . . . challenge[s] of our time.” Post, at 21. If this
case does not implicate a “question of deep economic and
political significance,” King, 576 U. S., at 486 (internal quo-
tation marks omitted), it is unclear what might.8
——————
rule being jurisdictional); Smith v. Bayer Corp., 564 U. S. 299, 307 (2011)
(presumption that federal injunctions don’t bar parallel state proceed-
ings); Fowler v. United States, 563 U. S. 668, 677 (2011) (federalism
canon); Kucana v. Holder, 558 U. S. 233, 237 (2010) (presumption in fa-
vor of judicial review); Holland v. Florida, 560 U. S. 631, 645–646 (2010)
(presumption in favor of equitable tolling); Hamilton v. Lanning, 560
U. S. 505, 517 (2010) (presumption that Bankruptcy Code didn’t erode
past practice).
8 The dissent seeks to invoke Justice Scalia as authority against the
major questions doctrine. See post, at 31–32. But the dissent neglects
to mention that Justice Scalia authored or joined several of the Court’s
major questions decisions, including Brown & Williamson, which the dis-
sent describes as the “key case.” Post, at 15–16 (citing 529 U. S. 120); see
also Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468
(2001); Utility Air, 573 U. S., at 307; A. Scalia, A Note on the Benzene
Cite as: 597 U. S. ____ (2022) 19
GORSUCH, J., concurring
In the end, our disagreement really seems to center on a
difference of opinion about whether the statute at issue
here clearly authorizes the agency to adopt the CPP. The
dissent even complains that I have failed to conduct an ex-
haustive analysis of the relevant statutory language. See
post, at 28, n. 8. But in this concurrence, I have sought to
provide some observations about the underlying doctrine on
which today’s decision rests. On the merits of the case be-
fore us, I join the Court’s opinion, which comprehensively
sets forth why Congress did not clearly authorize the EPA
to engage in a “generation shifting approach” to the produc-
tion of energy in this country. Ante, at 28. In reaching its
judgment, the Court hardly professes to “appoin[t] itself”
“the decision-maker on climate policy.” Post, at 33. The
Court acknowledges only that, under our Constitution, the
people’s elected representatives in Congress are the deci-
sionmakers here—and they have not clearly granted the
agency the authority it claims for itself. Ante, at 31.
*
When Congress seems slow to solve problems, it may be
only natural that those in the Executive Branch might seek
to take matters into their own hands. But the Constitution
does not authorize agencies to use pen-and-phone regula-
tions as substitutes for laws passed by the people’s repre-
sentatives. In our Republic, “[i]t is the peculiar province of
the legislature to prescribe general rules for the govern-
ment of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810).
Because today’s decision helps safeguard that foundational
constitutional promise, I am pleased to concur.
——————
Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980,
pp. 27–28.
Cite as: 597 U. S. ____ (2022) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1530, 20–1531, 20–1778 and 20–1780
_________________
WEST VIRGINIA, ET AL., PETITIONERS
20–1530 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
THE NORTH AMERICAN COAL CORPORATION,
PETITIONER
20–1531 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
WESTMORELAND MINING HOLDINGS LLC,
PETITIONER
20–1778 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
NORTH DAKOTA, PETITIONER
20–1780 v.
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 30, 2022]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
Today, the Court strips the Environmental Protection
Agency (EPA) of the power Congress gave it to respond to
“the most pressing environmental challenge of our time.”
Massachusetts v. EPA, 549 U. S. 497, 505 (2007).
Climate change’s causes and dangers are no longer sub-
ject to serious doubt. Modern science is “unequivocal that
2 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
human influence”—in particular, the emission of green-
house gases like carbon dioxide—“has warmed the atmos-
phere, ocean and land.” Intergovernmental Panel on Cli-
mate Change, Sixth Assessment Report, The Physical
Science Basis: Headline Statements 1 (2021). The Earth is
now warmer than at any time “in the history of modern civ-
ilization,” with the six warmest years on record all occur-
ring in the last decade. U. S. Global Change Research Pro-
gram, Fourth National Climate Assessment, Vol. I, p. 10
(2017); Brief for Climate Scientists as Amici Curiae 8. The
rise in temperatures brings with it “increases in heat-
related deaths,” “coastal inundation and erosion,” “more
frequent and intense hurricanes, floods, and other extreme
weather events,” “drought,” “destruction of ecosystems,”
and “potentially significant disruptions of food production.”
American Elec. Power Co. v. Connecticut, 564 U. S. 410, 417
(2011) (internal quotation marks omitted). If the current
rate of emissions continues, children born this year could
live to see parts of the Eastern seaboard swallowed by the
ocean. See Brief for Climate Scientists as Amici Curiae 6.
Rising waters, scorching heat, and other severe weather
conditions could force “mass migration events[,] political
crises, civil unrest,” and “even state failure.” Dept. of De-
fense, Climate Risk Analysis 8 (2021). And by the end of
this century, climate change could be the cause of “4.6 mil-
lion excess yearly deaths.” See R. Bressler, The Mortality
Cost of Carbon, 12 Nature Communications 4467, p. 5
(2021).
Congress charged EPA with addressing those potentially
catastrophic harms, including through regulation of fossil-
fuel-fired power plants. Section 111 of the Clean Air Act
directs EPA to regulate stationary sources of any substance
that “causes, or contributes significantly to, air pollution”
and that “may reasonably be anticipated to endanger public
health or welfare.” 42 U. S. C. §7411(b)(1)(A). Carbon di-
oxide and other greenhouse gases fit that description. See
Cite as: 597 U. S. ____ (2022) 3
KAGAN, J., dissenting
American Elec. Power, 564 U. S., at 416–417; Massachu-
setts, 549 U. S., at 528–532. EPA thus serves as the Na-
tion’s “primary regulator of greenhouse gas emissions.”
American Elec. Power, 564 U. S., at 428. And among the
most significant of the entities it regulates are fossil-fuel-
fired (mainly coal- and natural-gas-fired) power plants. To-
day, those electricity-producing plants are responsible for
about one quarter of the Nation’s greenhouse gas emissions.
See EPA, Sources of Greenhouse Gas Emissions (Apr. 14,
2022), https://www.epa.gov/ghgemissions/sources-greenhouse-
gas-emissions. Curbing that output is a necessary part of
any effective approach for addressing climate change.
To carry out its Section 111 responsibility, EPA issued
the Clean Power Plan in 2015. The premise of the Plan—
which no one really disputes—was that operational im-
provements at the individual-plant level would either “lead
to only small emission reductions” or would cost far more
than a readily available regulatory alternative. 80 Fed.
Reg. 64727–64728 (2015). That alternative—which fossil-
fuel-fired plants were “already using to reduce their [carbon
dioxide] emissions” in “a cost effective manner”—is called
generation shifting. Id., at 64728, 64769. As the Court ex-
plains, the term refers to ways of shifting electricity gener-
ation from higher emitting sources to lower emitting ones—
more specifically, from coal-fired to natural-gas-fired
sources, and from both to renewable sources like solar and
wind. See ante, at 8. A power company (like the many sup-
porting EPA here) might divert its own resources to a
cleaner source, or might participate in a cap-and-trade sys-
tem with other companies to achieve the same emissions-
reduction goals.
This Court has obstructed EPA’s effort from the begin-
ning. Right after the Obama administration issued the
Clean Power Plan, the Court stayed its implementation.
That action was unprecedented: Never before had the Court
stayed a regulation then under review in the lower courts.
4 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
See Reply Brief for 29 States and State Agencies in No.
15A773, p. 33 (conceding the point). The effect of the
Court’s order, followed by the Trump administration’s re-
peal of the rule, was that the Clean Power Plan never went
into effect. The ensuing years, though, proved the Plan’s
moderation. Market forces alone caused the power industry
to meet the Plan’s nationwide emissions target—through
exactly the kinds of generation shifting the Plan contem-
plated. See 84 Fed. Reg. 32561–32562 (2019); Brief for
United States 47. So by the time yet another President took
office, the Plan had become, as a practical matter, obsolete.
For that reason, the Biden administration announced that,
instead of putting the Plan into effect, it would commence a
new rulemaking. Yet this Court determined to pronounce
on the legality of the old rule anyway. The Court may be
right that doing so does not violate Article III mootness
rules (which are notoriously strict). See ante, at 14–16. But
the Court’s docket is discretionary, and because no one is
now subject to the Clean Power Plan’s terms, there was no
reason to reach out to decide this case. The Court today
issues what is really an advisory opinion on the proper
scope of the new rule EPA is considering. That new rule
will be subject anyway to immediate, pre-enforcement judi-
cial review. But this Court could not wait—even to see
what the new rule says—to constrain EPA’s efforts to ad-
dress climate change.
The limits the majority now puts on EPA’s authority fly
in the face of the statute Congress wrote. The majority says
it is simply “not plausible” that Congress enabled EPA to
regulate power plants’ emissions through generation shift-
ing. Ante, at 31. But that is just what Congress did when
it broadly authorized EPA in Section 111 to select the “best
system of emission reduction” for power plants.
§7411(a)(1). The “best system” full stop—no ifs, ands, or
buts of any kind relevant here. The parties do not dispute
that generation shifting is indeed the “best system”—the
Cite as: 597 U. S. ____ (2022) 5
KAGAN, J., dissenting
most effective and efficient way to reduce power plants’ car-
bon dioxide emissions. And no other provision in the Clean
Air Act suggests that Congress meant to foreclose EPA from
selecting that system; to the contrary, the Plan’s regulatory
approach fits hand-in-glove with the rest of the statute.
The majority’s decision rests on one claim alone: that gen-
eration shifting is just too new and too big a deal for Con-
gress to have authorized it in Section 111’s general terms.
But that is wrong. A key reason Congress makes broad del-
egations like Section 111 is so an agency can respond, ap-
propriately and commensurately, to new and big problems.
Congress knows what it doesn’t and can’t know when it
drafts a statute; and Congress therefore gives an expert
agency the power to address issues—even significant
ones—as and when they arise. That is what Congress did
in enacting Section 111. The majority today overrides that
legislative choice. In so doing, it deprives EPA of the power
needed—and the power granted—to curb the emission of
greenhouse gases.
I
The Clean Air Act was major legislation, designed to deal
with a major public policy issue. As Congress explained, its
goal was to “speed up, expand, and intensify the war
against air pollution” in all its forms. H. R. Rep. No. 91–
1146, p. 1 (1970). Or as this Court similarly recognized, the
Act was a “drastic remedy to what was perceived as a seri-
ous and otherwise uncheckable problem.” Union Elec. Co.
v. EPA, 427 U. S. 246, 256 (1976). The Act, as the majority
describes, established three major regulatory programs to
control air pollution from stationary sources like power
plants. See ante, at 2–6. The National Ambient Air Quality
Standards (NAAQS) and Hazardous Air Pollutants (HAP)
programs prescribe standards for specified pollutants, not
including carbon dioxide. Section 111’s New Source Perfor-
mance Standards program provides an additional tool for
6 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
regulating emissions from categories of stationary sources
deemed to contribute significantly to pollution. As applied
to existing (not new) sources, the program mandates—via
Section 111(d)—that EPA set emissions levels for pollu-
tants not covered by the NAAQS or HAP programs, includ-
ing carbon dioxide.
Section 111(d) thus ensures that EPA regulates existing
power plants’ emissions of all pollutants. When the pollu-
tant at issue falls within the NAAQS or HAP programs,
EPA need do no more. But when the pollutant falls outside
those programs, Section 111(d) requires EPA to set an emis-
sions level for currently operating power plants (and other
stationary sources). That means no pollutant from such a
source can go unregulated: As the Senate Report explained,
Section 111(d) guarantees that “there should be no gaps in
control activities pertaining to stationary source emissions
that pose any significant danger to public health or wel-
fare.” S. Rep. No. 91–1196, p. 20 (1970). Reflecting that
language, the majority calls Section 111(d) a “gap-filler.”
Ante, at 5. It might also be thought of as a backstop or
catch-all provision, protecting against pollutants that the
NAAQS and HAP programs let go by. But the section is
not, as the majority further claims, an “ancillary provision”
or a statutory “backwater.” Ante, at 20, 26. That charac-
terization is a non-sequitur. That something is a backstop
does not make it a backwater. Even if they are needed only
infrequently, see ante, at 6, 20, backstops can perform a
critical function—and this one surely does. Again, Section
111(d) tells EPA that when a pollutant—like carbon diox-
ide—is not regulated through other programs, EPA must
undertake a further regulatory effort to control that sub-
stance’s emission from existing stationary sources. In that
way, Section 111(d) operates to ensure that the Act achieves
comprehensive pollution control.
Section 111 describes the prescribed regulatory effort in
expansive terms. EPA must set for the relevant source
Cite as: 597 U. S. ____ (2022) 7
KAGAN, J., dissenting
(here, fossil-fuel-fired power plants) and the relevant pollu-
tant (here, carbon dioxide) an emission level—more partic-
ularly,
“the degree of emission limitation achievable through
the application of the best system of emission reduction
which (taking into account the cost of achieving such
reduction and any nonair quality health and environ-
mental impact and energy requirements) the [EPA] Ad-
ministrator determines has been adequately demon-
strated.” §7411(a)(1).
To take that language apart a bit, the provision instructs
EPA to decide upon the “best system of emission reduction
which . . . has been adequately demonstrated.” The provi-
sion tells EPA, in making that determination, to take ac-
count of both costs and varied “nonair” impacts (on health,
the environment, and the supply of energy). And the provi-
sion finally directs EPA to set the particular emissions limit
achievable through use of the demonstrated “best system.”
Taken as a whole, the section provides regulatory flexibility
and discretion. It imposes, to be sure, meaningful con-
straints: Take into account costs and nonair impacts, and
make sure the best system has a proven track record.1 But
the core command—go find the best system of emission re-
duction—gives broad authority to EPA.
If that flexibility is not apparent on the provision’s face,
consider some dictionary definitions—supposedly a staple
of this Court’s supposedly textualist method of reading stat-
utes. A “system” is “a complex unity formed of many often
diverse parts subject to a common plan or serving a common
purpose.” Webster’s Third New International Dictionary
2322 (1971). Or again: a “system” is “[a]n organized and
——————
1 Those constraints have had real effect: They have led EPA in prior
rulemakings to exclude a number of pollution-control measures from the
“best system of emission reduction.” See Brief for United States 49 (col-
lecting citations).
8 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
coordinated method; a procedure.” American Heritage Dic-
tionary 1768 (5th ed. 2018). The majority complains that a
similar definition—cited to the Solicitor General’s brief but
originally from another dictionary—is just too darn broad.
Ante, at 28; see Brief for United States 31 (quoting Web-
ster’s New International Dictionary 2562 (2d ed. 1959)).
“[A]lmost anything” capable of reducing emissions, the ma-
jority says, “could constitute such a ‘system’ ” of emission
reduction. Ante, at 28. But that is rather the point. Con-
gress used an obviously broad word (though surrounding it
with constraints, see supra, at 7) to give EPA lots of latitude
in deciding how to set emissions limits. And contra the ma-
jority, a broad term is not the same thing as a “vague” one.
Ante, at 18, 20, 28. A broad term is comprehensive, exten-
sive, wide-ranging; a “vague” term is unclear, ambiguous,
hazy. (Once again, dictionaries would tell the tale.) So EPA
was quite right in stating in the Clean Power Plan that the
“[p]lain meaning” of the term “system” in Section 111 refers
to “a set of measures that work together to reduce emis-
sions.” 80 Fed. Reg. 64762. Another of this Court’s opin-
ions, involving a matter other than the bogeyman of envi-
ronmental regulation, might have stopped there.
For generation shifting fits comfortably within the con-
ventional meaning of a “system of emission reduction.”
Consider one of the most common mechanisms of genera-
tion shifting: the use of a cap-and-trade scheme. Here is
how the majority describes cap and trade: “Under such a
scheme, sources that receive a reduction in their emissions
can sell a credit representing the value of that reduction to
others, who are able to count it toward their own applicable
emissions caps.” Ante, at 8–9. Does that sound like a “sys-
tem” to you? It does to me too. And it also has to this Court.
In the past, we have explained that “[t]his type of ‘cap-and-
trade’ system cuts costs while still reducing pollution to tar-
get levels.” EPA v. EME Homer City Generation, L. P., 572
U. S. 489, 503, n. 10 (2014) (emphasis added). So what does
Cite as: 597 U. S. ____ (2022) 9
KAGAN, J., dissenting
the majority mean when it says that “[a]s a matter of defi-
nitional possibilities, generation shifting can be described
as a ‘system’ ”? Ante, at 28 (emphasis added; citation and
some internal quotation marks omitted). Rarely has a stat-
utory term so clearly applied.
Other statutory provisions confirm the point. The Clean
Air Act’s acid rain provision, for example, describes a cap-
and-trade program as an “emission allocation and transfer
system.” §7651(b) (emphasis added). So a “system,” accord-
ing to the statute’s own usage, includes the kind of cap-and-
trade mechanism that the Clean Power Plan relied on. And
in a somewhat different way, the NAAQS provision shows
that Section 111 encompasses such a regulatory technique.
Under that provision, cap-and-trade schemes qualify as
“control measures, means, or techniques” that state plans
may use to reduce emissions. §7410(a)(2)(A). That lan-
guage, of course, does not use the word “system.” But in
specifying that cap and trade is allowable under the
NAAQS program, the provision supports the same conclu-
sion here—because Section 111 directs EPA to use “a pro-
cedure similar to that provided by [the NAAQS].”
§7411(d)(1). The majority discounts the relevance of both
those provisions on the ground that they contemplate trad-
ing systems only “as a means of complying with an already
established emissions limit.” Ante, at 29 (emphasis in orig-
inal). That is a distinction, to be sure. But to begin, it is
far less of one than the majority thinks: In arguing that
EPA’s claim of authority here would allow it to take the
emissions limit as low as it wants, the majority ignores the
varied constraints surrounding the “best system” language.
See supra, at 7. And still more important for interpretive
purposes, the distinction appears only in the majority’s
opinion, not in any statutory language. That text, to the
contrary, says to EPA: Do as you would do under the
NAAQS and Acid Rain programs—go ahead and use cap
and trade.
10 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
There is also a flipside point: Congress declined to include
in Section 111 the restrictions on EPA’s authority contained
in other Clean Air Act provisions. Most relevant here, quite
a number of statutory sections confine EPA’s emissions-
reduction efforts to technological controls—essentially,
equipment or processes that can be put into place at a par-
ticular facility. See ante, at 4 (describing those controls).
So, for example, one provision tells EPA to set standards
“reflect[ing] the greatest degree of emission reduction
achievable through the application of technology.”
§7521(a)(3)(A)(i). Others direct the use of the “best availa-
ble retrofit technology,” or the “best available control tech-
nology,” or the “maximum achievable control technology.”
§§7491(b)(2)(A), (g)(2), 7475(a)(4), 7479(3), 7412(g)(2).
There are still more. See, e.g., §§7411(h), 7511a(c)(7),
7651f(b)(2). None of those provisions would allow EPA to
set emissions limits based on generation shifting, as the
Agency acknowledges. See Brief for United States 32–33.
But nothing like the language of those provisions is in-
cluded in Section 111. That matters under normal rules of
statutory interpretation. As Justice Scalia once wrote for
the Court: “We do not lightly assume that Congress has
omitted from its adopted text requirements that it nonethe-
less intends to apply, and our reluctance is even greater
when Congress has shown elsewhere in the same statute
that it knows how to make such a requirement manifest.”
Jama v. Immigration and Customs Enforcement, 543 U. S.
335, 341 (2005).
Statutory history serves only to pile on: It shows that
Congress has specifically declined to restrict EPA to
technology-based controls in its regulation of existing sta-
tionary sources. The key moment came in 1977, when Con-
gress amended Section 111 to distinguish between new
sources and existing ones. For new sources, EPA could se-
lect only the “best technological system of continuous emis-
sion reduction.” Clean Air Act Amendments, §109(c)(1)(A),
Cite as: 597 U. S. ____ (2022) 11
KAGAN, J., dissenting
91 Stat. 700 (emphasis added). But for existing sources, the
word “technological” was struck out: EPA could select the
“best system of continuous emission reduction.” Ibid. The
House Report emphasized Congress’s deliberate choice:
Whereas the standards set for new sources were to be based
on “the best technological” controls, the “standards adopted
for existing sources” were “to be based on available means
of emission control (not necessarily technological).” H. R.
Rep. No. 95–564, p. 129 (1977). The Report did not further
explain the distinction. But presumably Congress gave
EPA more flexibility over existing plants because imposing
technological controls on old facilities is often not cost-
effective.2 Thirteen years later, Congress followed up by de-
leting from Section 111 the technological limitation apply-
ing to new facilities. See Clean Air Act Amendments of
1990, §403(a), 104 Stat. 2631. Once again, then, Congress
faced a choice: confine EPA to technological controls, or not.
And replicating its earlier action for existing sources, Con-
gress chose not.
The majority breezes past that congressional choice on
the ground that today’s opinion does not resolve whether
EPA can regulate in some non-technological ways; instead,
the opinion says only that the Clean Power Plan goes too
——————
2 The majority offers a theory for why Congress insisted on a techno-
logical system for new sources: It was, the majority says, to prevent
EPA’s use of a particular kind of technological system (involving fuel
switching) to achieve emissions reductions. See ante, at 22, n. 2, 23. To
begin with: I don’t see how requiring EPA to select among technological
systems precludes it from picking what the majority agrees is one such
measure. See ante, at 4, 22, n. 2, 22–23. But more important, I can’t see
why the majority’s explanation matters. Let’s assume the majority is
right about Congress’s motive. The key point remains the same: What-
ever that motive, Congress’s instruction to use technological systems ap-
plied only to new sources, and not to existing ones. As to the latter, Con-
gress allowed EPA more latitude: The Agency could use technological or
non-technological methods, as it preferred. That distinction is what cre-
ates interpretive difficulties for the majority—again, no matter why it
arose.
12 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
far. See ante, at 30–31. That is a puzzling point. As an
initial matter, it recharacterizes what this case has always
been about. The Trump administration repealed the Clean
Power Plan for one central reason: because (in its view) Sec-
tion 111 confines EPA to facility-specific, technological
measures. See 84 Fed. Reg. 32523–32529. In reviewing
that repeal, the court below thus addressed that limit alone.
See American Lung Assn. v. EPA, 985 F. 3d 914, 944 (CADC
2021). So add to the oddity of the Court’s declaring a de-
funct regulation unlawful, see supra, at 4, the irregularity
of its suggesting some kind of non-technological limit that
no one (not EPA, not the parties, not the court below) has
ever considered. More important here, both the nature and
the statutory basis of that limit are left a mystery. If the
majority is not distinguishing between technological con-
trols and all others, what is it doing—and how far does its
opinion constrain EPA? The majority makes no effort to
say. And because that is so, the majority cannot even at-
tempt to ground its limit in the statutory language. I’ve
just shown that restricting EPA to technological controls is
inconsistent with Section 111, especially when read in con-
junction with other statutory provisions. And the majority
provides no reason to think that its (possibly) different limit
fares any better. Section 111 does not impose any con-
straints—technological or otherwise—on EPA’s authority
to regulate stationary sources (except for those stated, like
cost). In somehow (and to some extent) saying otherwise,
the majority flouts the statutory text.
“Congress,” this Court has said, “knows to speak in plain
terms when it wishes to circumscribe, and in capacious
terms when it wishes to enlarge, agency discretion.” Ar-
lington v. FCC, 569 U. S. 290, 296 (2013). In Section 111,
Congress spoke in capacious terms. It knew that “without
regulatory flexibility, changing circumstances and scien-
tific developments would soon render the Clean Air Act ob-
solete.” Massachusetts, 549 U. S., at 532. So the provision
Cite as: 597 U. S. ____ (2022) 13
KAGAN, J., dissenting
enables EPA to base emissions limits for existing stationary
sources on the “best system.” That system may be techno-
logical in nature; it may be whatever else the majority has
in mind; or, most important here, it may be generation
shifting. The statute does not care. And when Congress
uses “expansive language” to authorize agency action,
courts generally may not “impos[e] limits on [the] agency’s
discretion.” Little Sisters of the Poor Saints Peter and Paul
Home v. Pennsylvania, 591 U. S. ___, ___ (2020) (slip op., at
16). That constraint on judicial authority—that insistence
on judicial modesty—should resolve this case.
II
The majority thinks not, contending that in “certain ex-
traordinary cases”—of which this is one—courts should
start off with “skepticism” that a broad delegation author-
izes agency action. Ante, at 19. The majority labels that
view the “major questions doctrine,” and claims to find sup-
port for it in our caselaw. Ante, at 19–20, 28. But the rele-
vant decisions do normal statutory interpretation: In them,
the Court simply insisted that the text of a broad delega-
tion, like any other statute, should be read in context, and
with a modicum of common sense. Using that ordinary
method, the decisions struck down agency actions (even
though they plausibly fit within a delegation’s terms) for
two principal reasons. First, an agency was operating far
outside its traditional lane, so that it had no viable claim of
expertise or experience. And second, the action, if allowed,
would have conflicted with, or even wreaked havoc on, Con-
gress’s broader design. In short, the assertion of delegated
power was a misfit for both the agency and the statutory
scheme. But that is not true here. The Clean Power Plan
falls within EPA’s wheelhouse, and it fits perfectly—as I’ve
just shown—with all the Clean Air Act’s provisions. That
the Plan addresses major issues of public policy does not
upend the analysis. Congress wanted EPA to do just that.
14 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
Section 111 entrusts important matters to EPA in the ex-
pectation that the Agency will use that authority to combat
pollution—and that courts will not interfere.
A
“[T]he words of a statute,” as the majority states, “must
be read in their context and with a view to their place in the
overall statutory scheme.” FDA v. Brown & Williamson To-
bacco Corp., 529 U. S. 120, 133 (2000); see ante, at 16. We
do not assess the meaning of a single word, phrase, or pro-
vision in isolation; we also consider the overall statutory de-
sign. And that is just as true of statutes broadly delegating
power to agencies as of any other kind. In deciding on the
scope of such a delegation, courts must assess how an
agency action claimed to fall within the provision fits with
other aspects of a statutory plan.
So too, a court “must be guided to a degree by common
sense as to the manner in which Congress is likely to dele-
gate.” Brown & Williamson, 529 U. S., at 133. Assume that
a policy decision, like this one, is a matter of significant
“economic and political magnitude.” Ibid. We know that
Congress delegates such decisions to agencies all the time—
and often via broadly framed provisions like Section 111.
See infra, at 29–31. But Congress does so in a sensible way.
To decide whether an agency action goes beyond what Con-
gress wanted, courts must assess (among other potentially
relevant factors) the nature of the regulation, the nature of
the agency, and the relationship of the two to each other.
See, e.g., Barnhart v. Walton, 535 U. S. 212, 222 (2002). In
particular, we have understood, Congress does not usually
grant agencies the authority to decide significant issues on
which they have no particular expertise. So when there is
a mismatch between the agency’s usual portfolio and a
given assertion of power, courts have reason to question
whether Congress intended a delegation to go so far.
The majority today goes beyond those sensible principles.
Cite as: 597 U. S. ____ (2022) 15
KAGAN, J., dissenting
It announces the arrival of the “major questions doctrine,”
which replaces normal text-in-context statutory interpreta-
tion with some tougher-to-satisfy set of rules. Ante, at 16–
31. Apparently, there is now a two-step inquiry. First, a
court must decide, by looking at some panoply of factors,
whether agency action presents an “extraordinary case[ ].”
Ante, at 17; see ante, at 20–28. If it does, the agency “must
point to clear congressional authorization for the power it
claims,” someplace over and above the normal statutory ba-
sis we require. Ante, at 19 (internal quotation marks omit-
ted); see ante, at 28–31. The result is statutory interpreta-
tion of an unusual kind. It is not until page 28 of a 31-page
opinion that the majority begins to seriously discuss the
meaning of Section 111. And even then, it does not address
straight-up what should be the question: Does the text of
that provision, when read in context and with a common-
sense awareness of how Congress delegates, authorize the
agency action here?
The majority claims it is just following precedent, but
that is not so. The Court has never even used the term “ma-
jor questions doctrine” before. And in the relevant cases,
the Court has done statutory construction of a familiar sort.
It has looked to the text of a delegation. It has addressed
how an agency’s view of that text works—or fails to do so—
in the context of a broader statutory scheme. And it has
asked, in a common-sensical (or call it purposive) vein,
about what Congress would have made of the agency’s
view—otherwise said, whether Congress would naturally
have delegated authority over some important question to
the agency, given its expertise and experience. In short, in
assessing the scope of a delegation, the Court has consid-
ered—without multiple steps, triggers, or special presump-
tions—the fit between the power claimed, the agency claim-
ing it, and the broader statutory design.
The key case here is FDA v. Brown & Williamson. There,
the Food and Drug Administration (FDA) asserted that its
16 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
power to regulate “drugs” and “devices” extended to tobacco
products. The claim had something to it: FDA has broad
authority over “drugs” and drug-delivery “devices,” and the
definitions of those terms could be read to encompass nico-
tine and cigarettes. But the asserted authority “simply
[did] not fit” the overall statutory scheme. 529 U. S., at 143.
FDA’s governing statute required the agency to ensure that
regulated products were “safe” to be marketed—but there
was no making tobacco products safe in the usual sense.
Id., at 133–143. So FDA would have had to reinterpret
what it meant to be “safe,” or else ban tobacco products al-
together. Ibid. Both options, the Court thought, were pre-
posterous. Until the agency action at issue, tobacco prod-
ucts hadn’t been spoken of in the same breath as
pharmaceuticals (FDA’s paradigmatic regulated product).
And Congress had created in several statutes a “distinct
regulatory scheme” for tobacco, not involving FDA. Id., at
155–156. So all the evidence was that Congress had never
meant for FDA to have any—let alone total—control over
the tobacco industry, with its “unique political history.” Id.,
at 159. Again, there was “simply” a lack of “fit” between the
regulation at issue, the agency in question, and the broader
statutory scheme. Id., at 143.
The majority’s effort to find support in Brown & William-
son for its interpretive approach fails. See ante, at 19. It
may be helpful here to quote the full sentence that the ma-
jority quotes half of. “In extraordinary cases,” the Court
stated, “there may be reason to hesitate before concluding
that Congress has intended such an implicit delegation.”
529 U. S., at 159. For anyone familiar with this Court’s
Chevron doctrine, that language will ring a bell. The Court
was saying only—and it was elsewhere explicit on this
point—that there was reason to hesitate before giving
FDA’s position Chevron deference. See id., at 132–133,
159–161. And what was that reason? The Court went on
to explain that it would not defer to FDA because it read
Cite as: 597 U. S. ____ (2022) 17
KAGAN, J., dissenting
the relevant statutory provisions as negating the agency’s
claimed authority. See id., at 160 (“[W]e are obliged to defer
not to the agency’s expansive construction of the statute,
but to Congress’ consistent judgment to deny the FDA this
power”); id., at 133 (finding at Chevron’s first step that
“Congress has directly spoken to the issue here and pre-
cluded the FDA’s” asserted power). In reaching that con-
clusion, the Court relied (as I’ve just explained) not on any
special “clear authorization” demand, but on normal princi-
ples of statutory interpretation: look at the text, view it in
context, and use what the Court called some “common
sense” about how Congress delegates. Ibid. That is how
courts are to decide, in the majority’s language, whether an
agency has asserted a “highly consequential power beyond
what Congress could reasonably be understood to have
granted.” Ante, at 20.
The Court has applied the same kind of analysis in sub-
sequent cases—holding in each that an agency exceeded the
scope of a broadly framed delegation when it operated out-
side the sphere of its expertise, in a way that warped the
statutory text or structure. In Gonzales v. Oregon, 546 U. S.
243 (2006), we rejected the Attorney General’s assertion of
authority (under a broad “public interest” standard) to re-
scind doctors’ registrations for facilitating assisted suicide,
even in States where doing so was legal. See id., at 243,
248–249, 261–275. We doubted Congress would have dele-
gated such a “quintessentially medical judgment[ ]” to “an
executive official who lacks medical expertise.” Id., at 266–
267. And we pointed to statutory provisions in which Con-
gress—in opposition to the claimed power—had “painstak-
ingly described the Attorney General’s limited authority” to
deregister physicians. Id., at 262.3
——————
3 Similarly, in King v. Burwell, 576 U. S. 473 (2015), we relied on
Brown & Williamson in declining to defer to the Internal Revenue Ser-
vice’s construction of the Affordable Care Act. We thought it highly “un-
likely that Congress would have delegated” an important decision about
18 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
Later, in Utility Air Regulatory Group v. EPA, 573 U. S.
302 (2014), the Court relied on similar reasoning to reject
EPA’s efforts to regulate “millions of small” and previously
unregulated sources of emissions—“including retail stores,
offices, apartment buildings, shopping centers, schools, and
churches.” Id., at 328. Key to that decision was the Court’s
view that reading the delegation so expansively would be
“inconsistent with” the statute’s broader “structure and de-
sign.” Id., at 321. The Court explained that allowing the
agency action to proceed would necessitate the “rewriting”
of other “unambiguous statutory terms”—indeed, of “pre-
cise numerical thresholds.” Id., at 321, 325–326. (In quot-
ing one cryptic sentence of Utility Air as supporting its new
approach, see ante, at 19, the majority ignores the nine pre-
ceding pages of analysis of the statute’s text and context,
see 573 U. S., at 315–324.)
And last Term, the Court concluded that the Centers for
Disease Control and Prevention (CDC) lacked the power to
impose a nationwide eviction moratorium. Alabama Assn.
of Realtors v. Department of Health and Human Servs., 594
U. S. ___, ___–___ (2021) (slip op., at 5–7). The Court held
that other statutory language made it a “stretch” to read
the relied-on delegation as covering the CDC’s action. Id.,
at ___ (slip op., at 6). And the Court raised an eyebrow at
the thought of the CDC “intrud[ing]” into “the landlord-ten-
ant relationship”—a matter outside the CDC’s usual “do-
main.” Ibid.4
The eyebrow-raise is indeed a consistent presence in
these cases, responding to something the Court found
anomalous—looked at from Congress’s point of view—in a
——————
healthcare pricing to an agency with “no expertise in crafting health in-
surance policy.” 576 U. S., at 486.
4 Not every Justice, of course, agreed with the Court’s conclusions in
the above-discussed cases; to be frank, I dissented in a couple. But what
matters here is the analysis those decisions undertook—and how, as I’ll
describe, it supports EPA’s Clean Power Plan.
Cite as: 597 U. S. ____ (2022) 19
KAGAN, J., dissenting
particular agency’s exercise of authority. In each case, the
Court thought, the agency had strayed out of its lane, to an
area where it had neither expertise nor experience. The At-
torney General making healthcare policy, the regulator of
pharmaceutical concerns deciding the fate of the tobacco in-
dustry, and so on. And in each case, the proof that the
agency had roamed too far afield lay in the statutory
scheme itself. The agency action collided with other statu-
tory provisions; if the former were allowed, the latter could
not mean what they said or could not work as intended.
FDA having to declare tobacco “safe” to avoid shutting down
an industry; or EPA having literally to change hard num-
bers contained in the Clean Air Act. There, according to the
Court, the statutory framework was “not designed to grant”
the authority claimed. Utility Air, 573 U. S., at 324. The
agency’s “singular” assertion of power “would render the
statute unrecognizable to the Congress” that wrote it. Ibid.
(internal quotation marks omitted).
B
The Court today faces no such singular assertion of
agency power. As I have already explained, nothing in the
Clean Air Act (or, for that matter, any other statute) con-
flicts with EPA’s reading of Section 111. Notably, the ma-
jority does not dispute that point. Of course, it views Sec-
tion 111 (if for unexplained reasons) as less clear than I do.
Compare ante, at 28, with supra, at 7–9. But nowhere does
the majority provide evidence from within the statute itself
that the Clean Power Plan conflicts with or undermines
Congress’s design. That fact alone makes this case differ-
ent from all the cases described above. As to the other crit-
ical matter in those cases—is the agency operating outside
its sphere of expertise?—the majority at least tries to say
something. It claims EPA has no “comparative expertise”
in “balancing the many vital considerations of national pol-
icy” implicated in regulating electricity sources. Ante, at
20 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
25–26. But that is wrong.
Start with what this Court has said before on the subject,
reflecting Congress’s view of the matter. About a decade
ago, we recognized that Congress had “delegated to EPA” in
Section 111 “the decision whether and how to regulate
carbon-dioxide emissions from powerplants.” American
Elec. Power, 564 U. S., at 426. To stress the key word (be-
cause the majority seems to miss it, see ante, at 26–27): not
merely “whether” but also “how.” In making that delega-
tion, we explained, Congress knew well what it was doing.
Regulating power plant emissions is a complex undertak-
ing. To do it right requires “informed assessment of com-
peting interests”: “Along with the environmental benefit po-
tentially achievable, our Nation’s energy needs and the
possibility of economic disruption must weigh in the bal-
ance.” 564 U. S., at 427; see §7411(a)(1) (instructing EPA
to consider “energy requirements,” “cost,” and other fac-
tors). Congress specifically “entrust[ed] such complex bal-
ancing to EPA,” because that “expert agency” has the
needed “scientific, economic, and technological resources” to
carry it out. 564 U. S., at 427–428. So the balancing—in-
cluding of the Nation’s “energy requirements”—that the
majority says EPA has no “comparative expertise” in?
§7411(a)(1); ante, at 25. We explained 11 short years ago,
citing Congress, that it was smack in the middle of EPA’s
wheelhouse.
And we were right. Consider the Clean Power Plan’s
component parts—let’s call them the what, who, and how—
to see the rule’s normalcy. The “what” is the subject matter
of the Plan: carbon dioxide emissions. This Court has al-
ready found that those emissions fall within EPA’s domain.
We said then: “[T]here is nothing counterintuitive to the no-
tion that EPA can curtail the emission of substances that
are putting the global climate out of kilter.” Massachusetts,
549 U. S., at 531. This is not the Attorney General regulat-
ing medical care, or even the CDC regulating landlord-
Cite as: 597 U. S. ____ (2022) 21
KAGAN, J., dissenting
tenant relations. It is EPA (that’s the Environmental Pro-
tection Agency, in case the majority forgot) acting to ad-
dress the greatest environmental challenge of our time. So
too, there is nothing special about the Plan’s “who”: fossil-
fuel-fired power plants. In Utility Air, we thought EPA’s
regulation of churches and schools highly unusual. See su-
pra, at 18. But fossil-fuel-fired plants? Those plants pol-
lute—a lot—and so they have long lived under the watchful
eye of EPA. That was true even before EPA began regulat-
ing carbon dioxide. See Train v. Natural Resources Defense
Council, Inc., 421 U. S. 60, 78 (1975).
Finally, the “how” of generation shifting creates no mis-
match with EPA’s expertise. As the Plan noted, generation
shifting has a well-established pedigree as a tool for reduc-
ing pollution; even putting aside other federal regulation,
see infra, at 25–26, both state regulators and power plants
themselves have long used it to attain environmental goals.
See 80 Fed. Reg. 64664; Brief for Power Company Respond-
ents 47; see also S. Breyer, Regulation and Its Reform 444,
n. 1 (1982) (citing literature on the subject from the 1970s).
The technique is, so to speak, a tool in the pollution-control
toolbox. And that toolbox is the one EPA uses. So that
Agency, more than any other, has the desired “comparative
expertise.” Ante, at 25. The majority cannot contest that
point frontally: It knows that cap and trade and similar
mechanisms are an ordinary part of modern environmental
regulation. Instead, the majority protests that Congress
would not have wanted EPA to “dictat[e],” through genera-
tion shifting, the “mix of energy sources nationwide.” Ante,
at 26. But that statement reflects a misunderstanding of
how the electricity market works. Every regulation of
power plants—even the most conventional, facility-
specific controls—“dictat[es]” the national energy mix to
one or another degree. That result follows because regula-
tions affect costs, and the electrical grid works by taking up
22 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
energy from low-cost providers before high-cost ones. Con-
sider an example: Suppose EPA requires coal-fired plants
to use carbon-capture technology. That action increases
those plants’ costs, and automatically (by virtue of the way
the grid operates) reduces their share of the electricity mar-
ket. So EPA is always controlling the mix of energy sources.
In that sense (though the term has taken on a more special-
ized meaning), everything EPA does is “generation shift-
ing.” The majority’s idea that EPA has no warrant to direct
such a shift just indicates that courts sometimes do not re-
ally get regulation.5
Why, then, be “skeptic[al]” of EPA’s exercise of authority?
Ante, at 28. When there is no misfit, of the kind apparent
in our precedents, between the regulation, the agency, and
the statutory design? Although the majority offers a flurry
of complaints, they come down in the end to this: The Clean
Power Plan is a big new thing, issued under a minor statu-
tory provision. See ante, at 20, 24, 26 (labeling the Plan
“transformative” and “unprecedented” and calling Section
111(d) an “ancillary” “backwater”). I have already ad-
dressed the back half of that argument: In fact, there is
——————
5 The majority’s only response to the argument above similarly reveals
a misperception as to the practical impact of different regulatory tech-
niques. According to the majority, there is an “obvious difference” be-
tween changing the energy mix by conventional technological regulation
and doing so by measures like cap and trade. Ante, at 27, n. 4. But in
fact there is not. As I’ll detail later, generation shifting can effect a sig-
nificant—or instead an insignificant—change in the energy mix; and the
same is true of technological regulations. See infra, at 24–25. It all de-
pends on the specifics: There is no necessary connection (in either direc-
tion) between the kind of regulation and the magnitude of its effect. For
example, a rule requiring the use of carbon-capture technology would
have shifted far more electricity production from coal-fired plants than
the Clean Power Plan would have. See ibid. In suggesting that cap-and-
trade programs are somehow more suspect, the majority merely serves
to disadvantage what is often the smartest kind of regulation: market-
based programs that achieve the biggest bang for the buck. That is why
so many power companies are on EPA’s side in this litigation.
Cite as: 597 U. S. ____ (2022) 23
KAGAN, J., dissenting
nothing insignificant about Section 111(d), which was in-
tended to ensure that EPA would limit existing stationary
sources’ emissions of otherwise unregulated pollutants
(however few or many there were). See supra, at 6. And
the front half of the argument doesn’t work either. The
Clean Power Plan was not so big. It was not so new. And
to the extent it was either, that should not matter.
As to bigness—well, events have proved the opposite: The
Clean Power Plan, we now know, would have had little or
no impact. The Trump administration’s repeal of the Plan
created a kind of controlled experiment: The Plan’s “magni-
tude” (ante, at 24) could be measured by seeing how far
short the industry fell of the Plan’s nationwide emissions
target. Except that turned out to be the wrong question,
because the industry didn’t fall short of the Plan’s goal; ra-
ther, the industry exceeded that target, all on its own. See
App. 265 (declaration of EPA official). And it did so mainly
through the generation-shifting techniques that the Plan
called for. See ibid.; Brief for United States 47. In effect,
the Plan predicted market behavior, rather than altered it
(as regulations usually do). Cf. Utility Air, 573 U. S., at
321–322 (discussing the “calamitous consequences” of the
EPA approach there under review). And that fact has been
understood for some years. At the time of the repeal, the
Trump administration explained that “there [was] likely to
be no difference between a world where the [Clean Power
Plan was] implemented and one where it [was] not.” 84
Fed. Reg. 32561.6 It is small wonder, then, that the power
——————
6 Even when the Clean Power Plan was first issued, its projected im-
pact was far less than what the majority implies. The majority states,
for example, that the rule would have “reduce[d] GDP by at least a tril-
lion 2009 dollars by 2040.” Ante, at 10. That sounds like a lot, but it is
in fact “equivalent to changes of a few tenths of 1 percent from baseline.”
Dept. of Energy, Analysis of the Impacts of the Clean Power Plan 63–64
(2015). And the “billions of dollars in compliance costs” the majority
highlights were vastly outweighed by the Plan’s projected benefits. Ante,
at 10; see 80 Fed. Reg. 64679 (anticipating $5–$8 billion in costs and
24 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
industry overwhelmingly supports EPA in this case. See
Brief for Power Company Respondents 2–3. In the regu-
lated parties’ view, the rule aimed to achieve what most
power companies also want: substantial reductions in car-
bon dioxide emissions accomplished in a cost-effective way
while maintaining a reliable electricity market. See id., at
26–27, 38, 41–42.
The majority thus pivots to the massive consequences
generation shifting could produce—but that claim fares just
as poorly. On EPA’s view of its own authority, the majority
worries, some future rule might “forc[e] coal plants to ‘shift’
away virtually all of their generation—i.e., to cease making
power altogether.” Ante, at 24. But looking at the text of
Section 111(d) might here come in handy. For the statute
imposes, as already shown, a set of constraints—particu-
larly involving costs and energy needs—that would pre-
clude so extreme a regulation. See Brief for United States
41–42 (conceding the point); supra, at 7. And if the majority
thinks those constraints do not really constrain, then it has
a much bigger problem. For “traditional” technological con-
trols, of the kind the majority approves, can have equally
dramatic effects. Ante, at 23. Take, for example, the “fuel-
switching” regulation the majority mentions. Ibid. Such a
rule does just what you might think: It requires a plant to
burn a different kind of fuel—say, natural gas instead of
coal. So it too can significantly “restructur[e] the Nation’s
overall mix of electricity generation.” Ante, at 16. Or take
an even more technological-sounding approach: the use of
carbon-capture equipment. Order the installation of that
equipment, the Trump administration concluded, and the
“exorbitant” costs “would almost certainly force the closure”
of all affected “coal-fired power plants.” 84 Fed. Reg. 32548.
——————
$32–$54 billion in benefits by 2030); see also EPA, Regulatory Impact
Analysis for the Clean Power Plan Final Rule 6–35 (2015) (estimating
that by 2030 jobs gained from the Plan would be some two or three times
greater than jobs lost).
Cite as: 597 U. S. ____ (2022) 25
KAGAN, J., dissenting
The point is a simple one: If generation shifting can go big,
so too can technological controls (assuming, once again,
that the statute’s text is ignored). The problem (if any ex-
ists) is not with the channel, but with the volume.7
The majority’s claim about the Clean Power Plan’s nov-
elty—the most fleshed-out part of today’s opinion, see ante,
at 20–24—is also exaggerated. As EPA explained when it
issued the Clean Power Plan, an earlier Section 111(d) reg-
ulation had determined that a cap-and-trade program was
the “best system of emission reduction” for mercury. 70
Fed. Reg. 28616–28621 (2005); see 80 Fed. Reg. 64772. In
the majority’s view, that rule was different because the “ac-
tual emission cap” for the contemplated cap-and-trade
scheme was based on the use of a plant-specific technol-
ogy—namely, wet scrubbers. Ante, at 21 (internal quota-
tion marks omitted). But the approval of cap and trade al-
lowed EPA to make the emissions limits more stringent
than it otherwise could have, because EPA knew that
plants unable to cost-effectively install scrubbers could in-
stead meet the limits through generation shifting. See 70
Fed. Reg. 28619. EPA could have designed the Clean Power
Plan in the same way—say, by setting emissions limits
based on carbon-capture technology, with the expectation
that many plants would avail themselves of an approved
cap-and-trade program instead. The majority gives no rea-
son to think Section 111(d) allows that approach but disal-
lows the Clean Power Plan. In both, generation shifting is
——————
7 The majority dismisses these hypotheticals as fantastical, protesting
that “EPA has never ordered anything remotely like [them], and we
doubt it could.” Ante, at 24, n. 3. But that’s just the point. EPA hasn’t
forced the elimination of coal plants—whether through technological
controls or generation shifting—because the statutory constraints pre-
vent it from doing so. The majority offers no reason to think that those
constraints suffice for the measures it approves (fuel switching and car-
bon capture) but not for the measure it rejects (generation shifting). Ei-
ther the constraints are enough or they are not. The majority cannot
have it both ways.
26 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
operating to increase the strictness of emissions limits.
And the mercury rule itself was rooted in precedent. A
decade earlier, EPA had determined that States could com-
ply with a Section 111(d) regulation for municipal waste
combustors by establishing cap-and-trade programs. See
40 CFR §§60.30a, 60.33b(d)(2) (1996). And beyond Section
111(d), trading and other tools of generation shifting be-
come still more common. For decades, EPA has relied on
those pollution-control techniques in rules covering new
internal-combustion engines under Section 111(b), sources
of nitrogen oxide under the NAAQS program, and motor ve-
hicles under Section 202(a). See 73 Fed. Reg. 3595 (2008);
71 Fed. Reg. 39159 (2006); 63 Fed. Reg. 57358–57359
(1998); 48 Fed. Reg. 33456 (1983); see also Brief for Richard
L. Revesz as Amicus Curiae 24–29 (collecting similar rules).
No doubt the majority is right that scrubbers and other
“add-on controls” are “more traditional air pollution control
measures.” Ante, at 23. EPA readily acknowledged that
fact in developing the Clean Power Plan. But the idea that
the Plan’s reliance on generation shifting effected some
kind of revolution in power-plant pollution control? No. As
I’ve noted before, power plants themselves use that method.
State environmental regulators use that method. And EPA
has used that method, including under the statutory provi-
sion invoked here.
In any event, newness might be perfectly legitimate—
even required—from Congress’s point of view. I do not dis-
pute that an agency’s longstanding practice may inform a
court’s interpretation of a statute delegating the agency
power. See ante, at 20–21. But it is equally true, as Brown
& Williamson recognized, that agency practices are “not
carved in stone.” 529 U. S., at 156–157 (internal quotation
marks omitted). Congress makes broad delegations in part
so that agencies can “adapt their rules and policies to the
demands of changing circumstances.” Id., at 157. To keep
Cite as: 597 U. S. ____ (2022) 27
KAGAN, J., dissenting
faith with that congressional choice, courts must give agen-
cies “ample latitude” to revisit, rethink, and revise their
regulatory approaches. Ibid. So it is here. Section 111(d)
was written, as I’ve shown, to give EPA plenty of leeway.
See supra, at 6–8. The enacting Congress told EPA to pick
the “best system of emission reduction” (taking into account
various factors). In selecting those words, Congress under-
stood—it had to—that the “best system” would change over
time. Congress wanted and instructed EPA to keep up. To
ensure the statute’s continued effectiveness, the “best sys-
tem” should evolve as circumstances evolved—in a way
Congress knew it couldn’t then know. See Massachusetts,
549 U. S., at 532. EPA followed those statutory directions
to the letter when it issued the Clean Power Plan. It se-
lected a system (as the regulated parties agree) that
achieved greater emissions reductions at lower cost than
any technological alternative could have, while maintain-
ing a reliable electricity market. Even if that system was
novel, it was in EPA’s view better—actually, “best.” So it
was the system that accorded with the enacting Congress’s
choice.
And contra the majority, it is that Congress’s choice
which counts, not any later one’s. The majority says it “can-
not ignore” that Congress in recent years has “considered
and rejected” cap-and-trade schemes. Ante, at 27–28. But
under normal principles of statutory construction, the ma-
jority should ignore that fact (just as I should ignore that
Congress failed to enact bills barring EPA from implement-
ing the Clean Power Plan). As we have explained time and
again, failed legislation “offers a particularly dangerous ba-
sis on which to rest an interpretation of an existing law a
different and earlier Congress” adopted. Bostock v. Clayton
County, 590 U. S. ___, ___ (2020) (slip op., at 20) (internal
quotation marks omitted); see Sullivan v. Finkelstein, 496
U. S. 617, 632 (1990) (Scalia, J., concurring in part) (“Argu-
ments based on subsequent legislative history” should “not
28 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
be taken seriously, not even in a footnote”). Return to
Brown & Williamson, which all agree is the key case in this
sphere. It disclaimed any reliance on “Congress’ failure” to
grant FDA jurisdiction over tobacco. 529 U. S., at 155. In-
stead, the Court focused on the statutes Congress “ha[d] en-
acted,” which created “a distinct regulatory scheme” for to-
bacco, incompatible with FDA’s. Ibid. (emphasis added).
Here, as I’ve shown and the majority effectively concedes,
there is nothing equivalent. See supra, at 9–12. Search
high and low, nothing in current law conflicts with, or oth-
erwise casts doubt on, the Clean Power Plan. That leaves
the Court in much the same place it was when deciding
Massachusetts v. EPA. Said the Court then: “That subse-
quent Congresses have eschewed enacting binding emis-
sions limitations to combat global warming tells us nothing
about what Congress meant” when it enacted the Clean Air
Act. 549 U. S., at 529–530. And so the Court recognized
EPA’s authority to regulate carbon dioxide. But that Court
was not this Court; and this Court deprives EPA of the au-
thority Congress gave it in Section 111(d) to respond to the
same environmental danger.
III
Some years ago, I remarked that “[w]e’re all textualists
now.” Harvard Law School, The Antonin Scalia Lecture Se-
ries: A Dialogue with Justice Elena Kagan on the Reading
of Statutes (Nov. 25, 2015). It seems I was wrong. The cur-
rent Court is textualist only when being so suits it. When
that method would frustrate broader goals, special canons
like the “major questions doctrine” magically appear as get-
out-of-text-free cards.8 Today, one of those broader goals
——————
8 The majority opinion at least addresses the statute’s text, though
overstating its ambiguity and approaching the action taken under it with
unwarranted “skepticism.” Ante, at 28; see ante, at 28–31. The concur-
rence, by contrast, concludes that the Clean Air Act does not clearly
enough authorize EPA’s Plan without ever citing the statutory text. See
Cite as: 597 U. S. ____ (2022) 29
KAGAN, J., dissenting
makes itself clear: Prevent agencies from doing important
work, even though that is what Congress directed. That
anti-administrative-state stance shows up in the majority
opinion, and it suffuses the concurrence. See ante, at 19,
25–26; e.g., ante, at 3–6 (GORSUCH, J., concurring).
The kind of agency delegations at issue here go all the
way back to this Nation’s founding. “[T]he founding era,”
scholars have shown, “wasn’t concerned about delegation.”
E. Posner & A. Vermeule, Interring the Nondelegation Doc-
trine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner & Ver-
meule). The records of the Constitutional Convention, the
ratification debates, the Federalist—none of them suggests
any significant limit on Congress’s capacity to delegate pol-
icymaking authority to the Executive Branch. And neither
does any early practice. The very first Congress gave
sweeping authority to the Executive Branch to resolve some
of the day’s most pressing problems, including questions of
“territorial administration,” “Indian affairs,” “foreign and
domestic debt,” “military service,” and “the federal courts.”
J. Mortenson & N. Bagley, Delegation at the Founding, 121
Colum. L. Rev. 277, 349 (2021) (Mortenson & Bagley). That
Congress, to use a few examples, gave the Executive power
to devise a licensing scheme for trading with Indians; to
craft appropriate laws for the Territories; and to decide how
to pay down the (potentially ruinous) national debt. See id.,at 334–338, 340–342, 344–345; C. Chabot, The Lost History
of Delegation at the Founding, 56 Ga. L. Rev. 81, 113–134
(2021) (Chabot). Barely anyone objected on delegation
grounds. See Mortenson & Bagley 281–282, 332, 339;
Chabot 117–119; Posner & Vermeule 1733–1736.
It is not surprising that Congress has always delegated,
——————
ante, at 13–16. Nowhere will you find the concurrence ask: What does
the phrase “best system of emission reduction” mean? §7411(a)(1). So
much for “begin[ning], as we must, with a careful examination of the
statutory text.” Henson v. Santander Consumer USA Inc., 582 U. S. 79,
___ (2017) (slip op., at 3).
30 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
and continues to do so—including on important policy is-
sues. As this Court has recognized, it is often “unreasona-
ble and impracticable” for Congress to do anything else.
American Power & Light Co. v. SEC, 329 U. S. 90, 105
(1946). In all times, but ever more in “our increasingly com-
plex society,” the Legislature “simply cannot do its job ab-
sent an ability to delegate power under broad general direc-
tives.” Mistretta v. United States, 488 U. S. 361, 372 (1989).
Consider just two reasons why.
First, Members of Congress often don’t know enough—
and know they don’t know enough—to regulate sensibly on
an issue. Of course, Members can and do provide overall
direction. But then they rely, as all of us rely in our daily
lives, on people with greater expertise and experience.
Those people are found in agencies. Congress looks to them
to make specific judgments about how to achieve its more
general objectives. And it does so especially, though by no
means exclusively, when an issue has a scientific or tech-
nical dimension. Why wouldn’t Congress instruct EPA to
select “the best system of emission reduction,” rather than
try to choose that system itself? Congress knows that sys-
tems of emission reduction lie not in its own but in EPA’s
“unique expertise.” Martin v. Occupational Safety and
Health Review Comm’n, 499 U. S. 144, 151 (1991).
Second and relatedly, Members of Congress often can’t
know enough—and again, know they can’t—to keep regula-
tory schemes working across time. Congress usually can’t
predict the future—can’t anticipate changing circum-
stances and the way they will affect varied regulatory tech-
niques. Nor can Congress (realistically) keep track of and
respond to fast-flowing developments as they occur. Once
again, that is most obviously true when it comes to scientific
and technical matters. The “best system of emission reduc-
tion” is not today what it was yesterday, and will surely be
something different tomorrow. So for this reason too, a ra-
tional Congress delegates. It enables an agency to adapt
Cite as: 597 U. S. ____ (2022) 31
KAGAN, J., dissenting
old regulatory approaches to new times, to ensure that a
statutory program remains effective. See, e.g., National
Federation of Independent Business v. OSHA, 595 U. S. ___,
___ (2022) (BREYER, SOTOMAYOR, and KAGAN, JJ., dissent-
ing) (slip op., at 9) (observing that a statute’s broad lan-
guage was meant to ensure that an agency had “the tools
needed to confront emerging dangers”).
Over time, the administrative delegations Congress has
made have helped to build a modern Nation. Congress
wanted fewer workers killed in industrial accidents. It
wanted to prevent plane crashes, and reduce the deadliness
of car wrecks. It wanted to ensure that consumer products
didn’t catch fire. It wanted to stop the routine adulteration
of food and improve the safety and efficacy of medications.
And it wanted cleaner air and water. If an American could
go back in time, she might be astonished by how much pro-
gress has occurred in all those areas. It didn’t happen
through legislation alone. It happened because Congress
gave broad-ranging powers to administrative agencies, and
those agencies then filled in—rule by rule by rule—Con-
gress’s policy outlines.
This Court has historically known enough not to get in
the way. Maybe the best explanation of why comes from
Justice Scalia. See Mistretta, 488 U. S., at 415–416 (dis-
senting opinion). The context was somewhat different. He
was responding to an argument that Congress could not
constitutionally delegate broad policymaking authority;
here, the Court reads a delegation with unwarranted skep-
ticism, and thereby artificially constrains its scope. But
Justice Scalia’s reasoning remains on point. He started
with the inevitability of delegations: “[S]ome judgments in-
volving policy considerations,” he stated, “must be left to
[administrative] officers.” Id., at 415. Then he explained
why courts should not try to seriously police those delega-
tions, barring—or, I’ll add, narrowing—some on the ground
that they went too far. The scope of delegations, he said,
32 WEST VIRGINIA v. EPA
KAGAN, J., dissenting
“must be fixed according to common sense and the in-
herent necessities of the governmental co-ordination.
Since Congress is no less endowed with common sense
than we are, and better equipped to inform itself of the
necessities of government; and since the factors bear-
ing upon those necessities are both multifarious and (in
the nonpartisan sense) highly political . . . it is small
wonder that we have almost never felt qualified to
second-guess Congress regarding the permissible de-
gree of policy judgment that can be left to those execut-
ing or applying the law.” Id., at 416 (internal quotation
marks omitted).
In short, when it comes to delegations, there are good rea-
sons for Congress (within extremely broad limits) to get to
call the shots. Congress knows about how government
works in ways courts don’t. More specifically, Congress
knows what mix of legislative and administrative action
conduces to good policy. Courts should be modest.
Today, the Court is not. Section 111, most naturally
read, authorizes EPA to develop the Clean Power Plan—in
other words, to decide that generation shifting is the “best
system of emission reduction” for power plants churning
out carbon dioxide. Evaluating systems of emission reduc-
tion is what EPA does. And nothing in the rest of the Clean
Air Act, or any other statute, suggests that Congress did
not mean for the delegation it wrote to go as far as the text
says. In rewriting that text, the Court substitutes its own
ideas about delegations for Congress’s. And that means the
Court substitutes its own ideas about policymaking for Con-
gress’s. The Court will not allow the Clean Air Act to work
as Congress instructed. The Court, rather than Congress,
will decide how much regulation is too much.
The subject matter of the regulation here makes the
Court’s intervention all the more troubling. Whatever else
this Court may know about, it does not have a clue about
Cite as: 597 U. S. ____ (2022) 33
KAGAN, J., dissenting
how to address climate change. And let’s say the obvious:
The stakes here are high. Yet the Court today prevents
congressionally authorized agency action to curb power
plants’ carbon dioxide emissions. The Court appoints it-
self—instead of Congress or the expert agency—the decision-
maker on climate policy. I cannot think of many things
more frightening. Respectfully, I dissent.