NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — The major questions doctrine holds that courts should not defer to agency statutory interpretations that concern questions of "vast economic or political significance."
In late June, the Supreme Court issued a ruling stating that the Environmental Protection Agency cannot put state-level caps on carbon emissions under the 1970 Clean Air Act, calling that a 'major question'.
Roger A. McEowen is the Professor of Agricultural Law and Taxation at Washburn University School of Law in Topeka. McEowen notes that this is a case where the administration at the time tried to make changes without asking Congress.
"What this was, was an attempt by the Obama EPA to basically rewrite and say, we're going to just shift to regulating out of existence coal-fired plants, fossil fuel generated electricity and we're going to regulate them out. They were doing this by regulation, so this would never come up for a vote in Congress and people wouldn't see it. It would just happen."
Now the follow up to the use of the major questions doctrine is, naturally, how do you define what a major question is?
"What the regulatory body is trying to do, when does it impact the entire economy?" McEowen said. "Of course, the Supreme Court doesn't tell us that. They just decide that on a case by case basis. Here they said that changing the manner in which energy is produced is national. That was kind of an easy one for them. There will be harder questions that will come up in the future, because the various administrations and agencies will try to push the envelope."
One area that will be constantly monitored by lawyers is that of the Waters of the U.S. rule, because the regulation of waterways will likely always be a source of contention for as long as humans need clean water to drink and plants and animals need water to survive. The two agencies tasked with figuring out how to interpret WOTUS are the EPA and the Army Corps of Engineers.
"There's a case before the U.S. Supreme Court on this out of Idaho," McEowen said. "That was also argued in October. We will probably see an opinion, I'm thinking February or March on this, to again try to define what a water of the United States is that gives the federal government jurisdiction to regulate it. It's a huge issue for agriculture, because we use a lot of water in agriculture for irrigation purposes, for livestock watering purposes. We don't want to have a puddle in a farm field defined as a wetland that the government can regulate, because that impacts farming activities."
In this particular case, the court appears to be looking to decide what test it should use to apply the WOTUS portion of the Clean Water Act, rather than calling it a major question that needs further clarification from Congress, even though almost every living thing uses water.
However, Congress could clarify future applications of law more generally if they would take up large concepts like air and water as a legislative body on a regular basis, at least once per Presidential Administration, rather than leaving it to courts and agencies to fight, or choose not to, based on who is in the White House.