The U.S. Supreme Court announced its last two opinions this morning.

The first opinion is West Virginia v. Environmental Protection Agency, a 6-3 decision by Chief Justice John Roberts, Justice Gorsuch files a concurring opinion joined by Justice Alito. Justice Kagan dissents, joined by Justices Breyer and Sotomayor.

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The questions presented are whether the Republican-led states and the coal companies have a legal right to bring the case to the Supreme Court at all when the lower court’s decision is on hold until the Biden EPA issues a new rule. If they do have that right, a second question before the justices is whether the lower court’s decision violates the “major questions” doctrine — the idea that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly.

Holding: “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.”

“Here, the judgment below 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. Here, the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting.”

“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.”

“Precedent teaches that there are “extraordinary cases” in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.”

“Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims.”

“This is a major questions case. EPA claimed to discover an unheralded power representing a transformative expansion of its regulatory 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).”

“[B]y 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. Indeed, the Agency nodded to the novelty of its approach when it explained 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.”

“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 . . . 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.”

“Nor can the Court ignore that the regulatory 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.”

“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.”

“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.”

Justice Kagan’s blistering dissent begins with a clear declaratory sentence: “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).”

“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.”

Justice Kagan points out: “This Court has obstructed EPA’s effort from the beginning. 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.”

“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 contemplated. 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 judicial 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.”

So add to the oddity of the Court’s declaring a defunct 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 controls 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.”

“[W]hen 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.”

[The majority] announces the arrival of the “major questions doctrine,” which replaces normal text-in-context statutory interpretation 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 omitted); see ante, at 28–31. The result is statutory interpretation of an unusual kind.

“The majority claims it is just following precedent, but that is not so. The Court has never even used the term “major questions doctrine” before. And in the relevant cases, the Court has done statutory construction of a familiar sort.”

“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 current 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 goalsmakes 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.

“In short, when it comes to delegations, there are good reasons 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.”

“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 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 itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening. Respectfully, I dissent.”

The last opinion of this term is Biden v. Texas, a 5-4 decision with the Opinion by Chief Justice Roberts. Justice Barrett filed a dissenting opinion, joined by Justices Thomas, Alito and Gorsuch “as to all but the first sentence”: The first sentence of Barrett’s dissent says, “I agree with the Court’s analysis of the merits—but not with its decision to reach them.” Justice Kavanaugh has a concurring opinion.

The question presented is “Whether the Department of Homeland Security must continue to enforce the Migrant Protection Protocols, a policy begun by President Donald Trump that requires asylum seekers at the southern border to stay in Mexico while awaiting a hearing in U.S. immigration court.”

The Court holds that the Biden administration’s decision to terminate the Migrant Protection Protocol, also known as the Remain in Mexico policy, did not violate federal immigration law, and the October memorandum was a final agency action.

So one loss for the Biden administration and the fate of the human race on a warming planet, and one win for the Biden administration on a technical discussion of immigration agency regulations.

A “clean up” orders list will be issued later today. I will review it for any grants of certiorari.


The Honorable Ketanji Brown Jackson will be sworn in as the 104th Associate Justice of the Supreme Court on Thursday, June 30, at noon at the Supreme Court of the United States. Chief Justice John G. Roberts, Jr., will administer the Constitutional Oath and Associate Justice Stephen G. Breyer will administer the Judicial Oath in a ceremony in the West Conference Room before a small gathering of Judge Jackson’s family.

The ceremony will be streamed live on the homepage of the Court’s website, www.supremecourt.gov.




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