Parading the Horribles in Administrative Law: Some Thoughts on the Oral Argument in West Virginia v. EPA

David Driesen

March 8, 2022

Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.

But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that might happen in future cases if the Court upheld EPA's interpretation of the Clean Air Act in the case before the Court.

Politicians use this kind of argument a lot in congressional debate about what laws to enact. And when Congress acts responsibly, it devotes years to getting experts to help it understand the future implications of possible rules stemming from those laws because government standard-setting often has large and difficult-to-understand ramifications.

This style of argument also shows up in constitutional law cases. In those cases, the judges write the rules and judge for themselves what consequences are acceptable or not.

But in administrative law cases, judges and advocates almost never rely on parade of horribles arguments. This is because judges are not supposed to write laws. They are simply supposed to determine whether an administrative agency has violated them. A judge interpreting a statute is not supposed to be influenced by their own views of desirable consequences. Instead, they are supposed to be judging whether the rules under review implemented the policy Congress had chosen.

Despite this, it is understandable that coal companies deployed parade of horribles arguments in West Virginia v. EPA, in which they challenged the Clean Power Plan (CPP), a climate pollution rule that no longer exists. The CPP had never triggered the drastic consequences that might concern conservative judges examining the case before them. Indeed, market forces caused the power companies to meet the CPP's modest goals even though the CPP never was implemented. Without a record of actual problems to lean on, arguing about possible future consequences of a potential rule or exercise of statutory authority seems more promising than arguing that the actual rule supposedly before the Court was unreasonable.

These sorts of arguments, however, provoke political activism from the bench if judges fail to see them for what they are: efforts to tempt judges to abandon their properly limited role in a democratic society governed by laws enacted by Congress and approved by an elected president. That's because it is impossible without a record, an agency explanation, and deep knowledge of administrative politics for generalist judges to distinguish likely future applications of the law from fantasies about things that will never happen or to judge whether future applications are well within what Congress intended. Unmoored from facts and a record, judges' political dispositions tend to govern their response to such arguments.

Seemingly giving into that temptation during oral argument, Justice Alito asked about one of the horribles the coal companies had paraded in its brief: regulation of greenhouse gas emissions from single-family homes. This was an odd line of questioning given that EPA had formally renounced authority to regulate single-family homes in a tailoring rule, which the courts declined to disturb. The Clean Air Act also contains numerous restraints that tend to limit vigorous action, which have occasionally led to reversals in the courts. Political restraints further limit agencies' ability to pursue radical measures. But Alito voiced the question anyway.

While historically rare in administrative law cases, the current Court has used parade of horribles in two hurried opinions on rules addressing COVID-19. In NFIB v. Biden, it reasoned that a literal interpretation of Occupational Safety and Health Act would lead to the Occupational Safety and Health Administration (OSHA) being able address air pollution and crime, thereby demonstrating judicial incompetence in understanding future applications.

First of all, it is well established that OSHA has statutory authority to regulate air pollution in the workplace and has done so for decades. Indeed, there is a Supreme Court case on regulation of benzene, which is an occupational hazard, as well as a public health hazard. So, applying its own views of acceptable future consequences in future cases led it to misunderstand matters at the core of the statute. Its predictions about crime becoming a matter of OSHA regulation ignores the problem of interpreting a statute focusing on "substances" to embrace regulation of crime and suggests deep ignorance of the political culture of OSHA (which is to be expected of even good generalist judges).

In Alabama Association v. Realtors v. Dep't of Health & Human Servs., the Court similarly relied on a parade of horribles argument to defeat an eviction moratorium designed to check the spread of disease by limiting homelessness.

Justice Alito asked about the role of parade of horribles arguments in identifying a major questions when the Court heard oral argument in West Virginia v. EPA. A modest Court would be especially prone to defer to the executive branch's interpretation in important cases, as people elect a president to decide that sort of thing either directly or through his appointments But this Court treats categorization of a rule as involving a major question as triggering a judicial license to ignore the stated policies in a statute—such as the CAA policy of protecting public health and the environment.

Apparently, Alito recognized that the CPP itself was of little economic or social significance, as the utility industry met the CPP's goals even while its implementation was stopped. So, he shifted gears and questioned the idea that in looking at whether a rule raised a major question, a judge should "look to what the agency is actually doing." He asked if a statutory interpretation "that would have vast economic and political significance if the agency exercised all of the power that it claims it has under its interpretation . . . but, as a first move, it adopts a fairly modest rule that only invokes 5 percent of that power" amounted to creating a major question that the agency supposedly didn't have the authority to answer through rules and enforcement. Thus, he viewed the Court's role as writing laws to prevent consequences it did not like, instead of simply deciding whether the agency action before it violates the law.

Unfortunately, neither the lawyer arguing the case for the power companies (who supported the CPP) nor the briefs provided a cogent answer to Alito's question. The answer is that judges cannot predict what future rules an agency may adopt. Nor can they properly judge their legality without briefing and oral argument focused on the application. And Congress has the authority to adopt legislation that has significant and economic implications and to expect the executive branch to enforce its policy and the judges to confine themselves to making sure the agency has not gone in a contrary direction. The Clean Air Act does not license conservative judges to abandon health and environmental protection because they do not like the possible economic consequences of imaginary future regulations.

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