Overview of the MQD in West Virginia and Beyond
Chief Justice Roberts wrote West Virginia for a 6–3 majority. The Court held that the Clean Power Plan (CPP) exceeded the EPA’s statutory authority under section 111(d) of the CAA. It emphasized that “extraordinary cases” require a distinct approach to statutory interpretation, especially when “the history and the breadth of the authority” asserted, alongside its “economic and political significance,” signal a need to “hesitate before concluding that Congress meant to confer such authority.” Id. at 721 (internal quotation marks and citation omitted). In such cases, the Court requires the agency to “point to clear congressional authorization for the power it claims.” Id. at 723 (internal quotation marks and citation omitted). The Court found that the EPA lacked sufficient authority to implement the CPP, reasoning that decisions “of such magnitude and consequence” fall to Congress or an agency acting pursuant to a clear delegation. Id. at 735.
The West Virginia Court’s framework for the MQD uses a two-part test. First, the reviewing court should ask whether the agency’s assertion of authority is extraordinary. Here, a court will likely weigh three factors: (1) the political nature of the issue implicated, (2) the economic impact of the action, (3) and the historical framework of the agency and its authority. If these factors weigh in favor of extraordinariness, the second step directs the decision-maker to skeptically search for clear congressional authorization for the action. Where no such authority is found, the agency action violates the MQD.
Under the “extraordinariness” prong, the first factor considers the political significance of the agency’s action. When an agency tackles “the subject of an earnest and profound debate,” it generally tilts the scales in favor of finding the action extraordinary. Id. at 732 (quoting Gonzales v. Oregon, 546 U.S. 243, 267–68 (2006)). This phrase originates from cases involving physician-assisted suicide. In Gonzales, the Court found that Congress had not granted the attorney general authority to punish physicians for using federally controlled drugs in state-legalized physician-assisted suicide. The political debate was “about the morality, legality, and practicality of physician-assisted suicide.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997). According to the Gonzales Court, Congress could not have intended the attorney general to have “the power to effect a radical shift of authority from the States to the Federal Government” by resolving the debate on physician-assisted suicide. Gonzales, 546 U.S. at 275. By this logic, if the political factor restricts the attorney general from resolving a debate one way, it should equally prevent the attorney general from resolving it in the opposite direction.
Understanding the political significance factor in this way (that it is triggered when a federal agency seeks to weigh in on a profound political debate) could work in favor of challenges to anti-environmental rulemakings and polluting activities, particularly when an action implicates climate change. The West Virginia Court established that climate change is a profound debate, emphasizing that “long after the dangers posed by greenhouse gas emissions had become well known, Congress considered and rejected [action] multiple times.” West Virginia, 597 U.S. at 731 (internal quotation marks and citations omitted). The Court pointed to the American Clean Energy and Security Act of 2009 (H. R. 2454, 111th Cong., 1st Sess.), the Clean Energy Jobs and American Power Act (S. 1733, 111th Cong., 1st Sess. (2009)), the Climate Protection Act of 2013 (S. 332, 113th Cong., 1st Sess.), and the Save Our Climate Act of 2011 (H.R. 3242, 112th Cong., 1st Sess.). West Virginia, 597 U.S. at 731–32. These carbon tax and cap-and-trade schemes never became law, which indicated to the West Virginia Court that the EPA’s attempt to regulate a similar program was suspect. Thus, until Congress acts on climate change, it remains an undecided debate.
The second factor weighs the economic impact of the agency’s action. In West Virginia, the Court characterized the price tag associated with the CPP as some “billions” of dollars ($200 billion according to Justice Gorsuch), despite evidence that market forces alone had pushed industry towards meeting the CPP’s emissions targets. Id. at 714; id. at 746 (Gorsuch, J., concurring); id. at 755 (Sotomayor, J., dissenting). Other MQD cases have signaled that $50 billion (Alabama Association of Realtors v. Dep’t of Health & Hum. Serv., 594 U.S. 758, 764 (2020)) and certainly $500 billion (Biden v. Nebraska, 143 S. Ct. 2355, 2373 (2023)) similarly called the agency’s regulatory authority into doubt.
The economic impacts of climate change were not discussed in the majority opinion of West Virginia. Instead, the Court focused solely on the reach of the agency’s action and possible costs to industry. This is a mark of the political nature of the MQD, where its application in practice has focused on one side of the economic assessment and refused to acknowledge the other. However, a court could proceed with its economic assessment through a more holistic analysis. The costs associated with a regulation should not be confined to only those borne by industry and consumers: Regulatory changes can impact insurance costs, health care costs, environmental cleanup costs, and climate disaster costs, just to name a few—all externalized by industry and paid by society as a whole. Although calculating the cost of environmental harms is imprecise, so too was the estimated cost of the CPP. Notably, the Court’s feared utility apocalypse never occurred, but not because the CPP was stayed. Instead, its goals and standards were achieved by market forces alone. Id. at 755 (Sotomayor, J., dissenting). Ultimately, all large-scale economic impacts are imprecise, but there are ever-emerging and more reliable ways to calculate costs associated with environmental harm.
The Court has not defined the historical practice factor as well as the first two. This consideration assesses whether the agency’s action aligns with established historical applications of the relevant statutory authority. In West Virginia, the Court characterized the EPA’s action as “novel” and assessed its application of the CAA section 111(d) as “unprecedented.” 597 U.S. at 728 (majority op.). The Court’s scrutiny of an agency’s historical adherence to or deviation from statutory authority is intended to gauge whether the action falls within the bounds of Congress’s original intent.
The historical practice factor may ultimately be subordinated to considerations of the economic and political significance of the agency’s action. The West Virginia Court assessed this factor narrowly, declining to consider an earlier section 111(d) rulemaking in part because it was “controversial” and “never addressed by a court,” and because the rule had based emissions reductions on a technological standard rather than a generation-shifting standard. Id. at 724–27. While recognizing that the EPA’s reliance on section 111(d) was an unusual way for the agency to regulate emissions from stationary sources, it was nevertheless a peculiar choice for the Court to restrict its historical analysis based on found controversy and distinctions between technology and generation shifting. Similarly, in Biden v. Nebraska, the Court also assessed the historical factor narrowly. 143 S. Ct. 2355. There, the Court found that the Biden administration’s student loan forgiveness program violated the MQD and refused to consider prior waivers and modifications under the historical factor (including loan payment and interest suspensions amounting to over $100 billion). Id. at 2399 (Kagan, J., dissenting). Under both West Virginia and Biden v. Nebraska, the Court has thus pointed towards a flexible review under the third factor, where prior agency actions may be distinguishable.
When these three factors point towards extraordinariness, a court should then search with “skepticism” for “clear congressional authorization” for the agency’s action. West Virginia, 597 U.S. at 732 (internal quotation marks and citation omitted). The search for clear congressional authorization under the MQD may prove to be a fraught journey for many regulatory bodies seeking to assert authority, especially when a statute grants broad, general authority, as any extraordinary action taken under it is likely to fail. For example, CAA section 111(d) authorizes the EPA to establish regulations controlling the standards of performance for air pollutants for existing sources. Although this is precisely what the CPP set out to do, the Court found that this delegation did not pass muster as a clear congressional authorization to shift how the nation generates electricity.
Despite the obvious deregulatory nature of the MQD, there is a balanced and common-sense application of this doctrine that could serve climate action. This reimagining of the MQD is simple: If agencies are prohibited from putting forward far-reaching regulatory schemes that would serve to reduce greenhouse gases and lessen the impacts of climate change, then the MQD also should prohibit agencies from advancing novel and significant actions that would make climate change worse. There are at least two applications of the MQD that could serve this purpose: when an agency puts forward anti-environmental regulations and when an agency permits a highly polluting activity. As discussed below, each of the extraordinariness factors can support the conclusion that an anti-environmental regulation or a highly polluting permit runs afoul of the MQD.
Anti-Environmental Regulations
One way that litigants can affirmatively use the MQD for the climate is to target anti-environmental agency rulemakings. An anti-environmental regulation could take many forms, including a rule that rolls back previously established environmental protections or a directive to not consider environmental impacts. For example, one anti-environmental regulation that could have triggered the MQD was the Council on Environmental Quality’s (CEQ’s) 2020 rulemaking modifying the National Environmental Policy Act’s (NEPA’s) regulations (2020 Rule). Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act (Final Rule), 85 Fed. Reg. 43,304 (July 16, 2020). The 2020 Rule was an abrupt shift from regulations that had been largely untouched since first promulgated in 1978. Specifically, the 2020 Rule eliminated environmental review for entire classes of projects by removing the definitions of “cumulative impacts” and “direct impacts” and discarding the requirement for agencies to discuss all reasonable alternatives, among other changes. Wild Virginia v. CEQ, 544 F. Supp. 3d 620, 627 (W.D. Va. 2021). The 2020 Rule also carried all the trappings of an extraordinary agency action: It sought to diminish the federal government’s ability to consider climate impacts despite a highly politicized national debate on this issue, would have resulted in billions of dollars in associated costs, and would have allowed federal agencies to disregard environmental impacts that they had been required to assess for over 40 years. (Although the D.C. Circuit recently found that no statute provides the CEQ with rulemaking authority, the 2020 Rule remains valuable as an example. Marin Audubon Soc’y v. FAA, 121 F.4th 902 (D.C. Cir. 2024).)
The political nature of the 2020 Rule was remarkable. The New York Times described it as a “landmark measure that touches nearly every highway, pipeline and other major federal construction in the country.” Lisa Friedman, Trump’s Move Against Landmark Environmental Law Caps a Relentless Agenda, N.Y. Times (Jan. 9, 2020). The 2020 Rule was also profound and controversial in ways similar to both Gonzales and West Virginia because it altered the status quo on a matter of great political importance and a topic of national debate: climate change. Moreover, the 2020 Rule amounted to a decision by an agency to reduce long-existing climate assessment mechanisms when Congress had failed to address this issue. See West Virginia, 597 U.S. at 731–32. Thus, the 2020 Rule, with its far-reaching impacts, controversial nature, and climate implications, likely would have satisfied the political factor under the MQD’s extraordinariness prong.
A court also may have deemed the economic impacts of the 2020 Rule as significant. Climate change is bringing 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 ecosystem, and potentially significant disruptions of food production.” West Virginia, 597 U.S. at 753 (Kagan, J., dissenting) (internal quotation marks and citation omitted). These impacts will cost the American economy somewhere in the realm of $14.6 trillion over the next 50 years, in addition to the loss of nearly 900,000 jobs per year. Deloitte, The Turning Point: A New Economic Climate in the United States 6, 17 (Jan. 2022).
Of course, the 2020 Rule is not the cause of all greenhouse gas emissions. Nevertheless, attribution science is constantly improving, and the Rule could be charged with the costs attributable to the greenhouse gas emissions that federal actions and those activities licensed and permitted by federal agencies create: Even 0.5% of $14.6 trillion is $73 billion, a figure well within the Supreme Court’s range of “significant” economic impact for the MQD. The challenge here will be to ensure that courts do not selectively blind themselves to societal costs while focusing exclusively on those inflicted on regulated entities.
The final factor considers an agency’s historical practice. Over four decades passed between NEPA’s 1978 implementing regulations and the agency’s 2020 wholesale revisions. A petitioner could have shown that the 2020 Rule substantially departed from CEQ’s prior practice, especially given the parameters that Congress established in section 101 of NEPA:
[T]o use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which [people] and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
42 U.S.C. § 4331(a). Had the D.C. Circuit not recently held that CEQ lacks rulemaking authority, future revisions by the agency likely would have been subject to significant scrutiny under a historical analysis.
In prospective challenges, petitioners should advocate for a narrow historical assessment that highlights the novelty of the regulation. Novelty, of course, is context sensitive and is strongest for the MQD’s application when a federal agency does something completely new pursuant to a longstanding statutory regime. The Court’s vague treatment of the history factor allows room for creative arguments, enabling petitioners to frame anti-environmental regulations as unprecedented departures from established practice.
Highly Polluting Agency Permits
Another way that litigators could leverage the MQD to prevent actions that worsen climate change would be to target highly polluting agency permits. Federal agencies are responsible for approving or rejecting a wide array of climate-worsening projects. In one example of a potentially extraordinary agency action, the Bureau of Land Management (BLM) is overseeing the approval of the Converse County Oil and Gas Project, which seeks to add 5,000 new wells over a 10-year period in Wyoming. Bureau of Land Mgmt., Environmental Impact Statement for Converse County Oil and Gas Project (2020). This project would result in an estimated 69.5 million metric tons of carbon dioxide equivalent annually, or 2.2% of total direct annual U.S. greenhouse gas emissions from oil and gas. Id. at 5-24. BLM’s approval of this project is currently being litigated. See Powder River Basin v. U.S. Dep’t of the Interior, No. 22-cv-2696-TSC (D.D.C. Sept. 13, 2024), appeal pending.
The political factor may be more difficult to satisfy under a challenge to a climate-worsening permit than for a rulemaking because permits are typically issued to single actors and generally have less widespread impacts than rules. Nevertheless, an agency’s approval of projects like the Converse County Project could be deemed extraordinary under this factor because there is a highly politicized debate currently taking place in our nation regarding whether oil and gas development should be expanded. In situations similar to the Converse County Project, it may be sufficient to show how much controversy surrounds the project. Petitioners could also focus on its massive scale, pointing to the fact that a 5,000-well approval over a 10-year period is a colossal undertaking that would have a marked impact on the climate and environment. As such, BLM is using its statutory authority to try to effectively resolve the climate change debate—albeit in the opposite direction from what was at issue in West Virginia. Absent Congress’s clear authorization to head steadfast towards climate catastrophe, agencies should not be permitted to step in and decide to do so.
Moreover, the Converse County Project arguably satisfies the economic factor of extraordinariness because the project may result in billions of dollars in costs. Distinct from industry-shifting regulations like the CPP or the 2020 Rule, a permit to approve a project is typically associated with increased revenue for an actor or industry, but the same reasoning discussed above should apply here too. Climate-worsening agency permit approvals will result in externalized costs that society bears because of climate change and ecological impacts. Moreover, unlike the relative uncertainty associated with calculating the costs that a regulation imposes, a permitted project results in more direct costs that can be measured using the social cost of carbon. The EPA’s social cost of carbon estimates the cost attributable to incremental increases in greenhouse gas emissions and encompasses such impacts as climate change–related health costs, property damage, agricultural losses, and ecosystem disruptions. U.S. EPA, Report on the Social Cost of Greenhouse Gases: Estimates Incorporating Recent Scientific Advances (Nov. 2023). The current estimated social cost of carbon is $190 per ton of carbon dioxide equivalent, meaning that if the Converse County Project results in 69.5 million metric tons of carbon dioxide equivalent annually, it will cost approximately $13.2 billion per year, or $132 billion over its 10-year lifetime. Under MQD precedent, this figure is significant.
The final factor assesses the agency’s historical practice. Novelty may be more challenging to show in a permitting context, especially where agencies have long issued permits for a certain type of activity. For example, the Converse County Project is hardly novel because the BLM has authorized several similar projects in the past. Nevertheless, a narrow historical assessment, like the Court applied in West Virginia and Biden v. Nebraska, may allow a petitioner to define the boundaries of the record most relevant to the circumstances of the case. The scale and reach of the Converse County Project, paired with BLM’s novel approach to assessing environmental harms (e.g., not assessing cumulative impacts), may be valid considerations under this factor. Alternatively, perhaps permitting a polluting activity in today’s world is an entirely different question than it was 10 years ago. Today, we live in a world where Californians are inured to wildfire evacuations and smoke, where Floridians must weather back-to-back hurricanes, and where Texans face unrelenting high temperature streaks above 100 degrees Fahrenheit. In this way, an agency action that invites climate devastation is novel: Never before have federal agencies issued permits amid a status quo of being in a nearly constant state of national climate emergency.
Clear Congressional Authorization
Considering each of these factors, it seems likely that an unbiased court could find that an agency’s promulgation of anti-environmental regulations or the issuance of a highly polluting permit satisfies the extraordinariness test under the MQD. When this is the case, the final step under the MQD is to search skeptically for clear congressional authorization. Here, a court should not ask whether the agency action can fit within a reasonable interpretation of its delegating statute. Instead, a court must determine whether the action fits squarely within an agency authorization granted by a clear statutory provision. If the first prong of the MQD determines that the matter in question is extraordinary, broad or vaguely worded delegations will not be sufficient to satisfy the clear delegation requirement.
Of course, most agency actions will undeniably occur under a statutory delegation of some sort, but here an agency must point to a clear authorization—one that ostensibly had the controversy, breadth, and scale of the agency’s action in mind. As the Supreme Court’s own decisions have shown, this final prong of the MQD lends itself to overturning, not upholding, agency actions. Most skeptical reviews of a delegation will unearth some ambiguity that will call into question an agency’s power to act. Nonbiased judges should be poised to apply this doctrine holistically. In the end, where our precedent tells us that extraordinary actions to solve the climate crisis lack clear congressional authorization, so too must actions that worsen the crisis.
Ultimately, under both scenarios discussed here—anti-environmental regulations and highly polluting permit approvals—the MQD can serve as a possible avenue for a petitioner to challenge a government action. Undeniably, there is a rift between how the MQD has been applied by the Court (as a deregulatory tool leveraged against progressive policies) and how this article proposes that it be applied. Nevertheless, assuming that the MQD should serve as a balanced canon for nonpoliticized review of agency action, it is time that courts reckon with its application to antiregulatory and allegedly pro-business agency decisions—especially as an administration poised to attack environmental protections re-enters the stage.
