This op-ed was originally published in The American Prospect.
After the Supreme Court’s decision last month rejecting the Biden vaccine mandate for large employers, it wasn’t just the public health community that was asking “where do we go from here?” Environmental activists and attorneys immediately recognized that the Court’s reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.
On the surface, the vaccine case and West Virginia appear to involve totally different issues. NFIB was a challenge to an emergency regulation from the Occupational Safety and Health Administration (OSHA) that required large employers to either verify COVID-19 vaccinations or compel their employees to wear masks and get tested. In a 6-3 decision, with the three liberals dissenting, the Court stayed the regulation as beyond OSHA’s authority, in part because OSHA had never addressed viruses in the workplace before.
West Virginia, which the Court will hear on February 28, is a blockbuster case. At stake is whether EPA can use the Clean Air Act to address greenhouse gas emissions from the electric power industry, which represent about a quarter of all U.S. emissions. Given how they ruled last month in NFIB, the Court’s conservatives are likely to use the case to gut EPA’s authority. And in the process, they might strengthen legal doctrine that would curb federal agencies’ power on a broad range of other issues, like health care, financial regulation, and consumer protection.
The link between West Virginia and the January decision in NFIB is the “major questions doctrine,” an anti-regulatory device that the conservative wing of the Court has embraced with a bear hug. The major questions doctrine says that when Congress chooses to delegate authority to a regulatory agency like OSHA or EPA, it must “speak clearly” if it wishes to “assign to an agency decisions of vast economic and political significance.”