As Chief Justice John Roberts said in its majority opinion, when administrative bodies “in some extraordinary cases” claim “unprecedented” authority — such as the EPA’s assertion that it could compel energy companies to switch from coal to cleaner sources — the agency must show that ‘She has clear and explicit authority under federal law.

At first glance, the court appeared to be saying simply that all branches of government must obey the law.

Scratch below the surface and the court appears to have shifted the balance of power from government regulators to those they regulate and their allies in Congress.

“The ‘big issues’ doctrine was fabricated by this new Supreme Court as a way to attack what they call the ‘administrative state,'” said Ian Fein, an attorney with the Natural Resources Defense Council of San Francisco. “This is a judicial grab that allows the courts to selectively undermine laws designed to protect our public health and the environment.”

While the decision “is very vague on what is a major question or what is specific enough to answer it, the court has opened the door to challenges to countless agency actions,” said Erwin Chemerinsky, dean. from UC Berkeley Law School and a liberal. Lawyer.

On the conservative side, Michael McConnell, a Stanford law professor and former federal appeals court judge, said the July 1 ruling “reduces some of the worst abuses of the Chevron Doctrine,” with the 1984 court ruling requiring judges to accept an administrative decision. the agency’s plausible interpretation of a contested regulatory law.

Conservatives and business groups have long argued for repeal of the Chevron Doctrine, and some commentators say the court effectively struck it down even before the EPA’s ruling. Lisa Heinzerling, a law professor at Georgetown University, said judges have stopped referring to the Chevron case and the government often refrains from asking for what was once called “Chevron deference” to agency decisions.

Perhaps more importantly, for the court’s conservative majority, the decision was a response to what Justice Neil Gorsuch, in a concurring opinion joined by Justice Samuel Alito, described as “the explosive growth of the state administration since 1970”.

As the company supported Heritage Foundation observed, it’s a battle conservatives have been waging against what they see as excessive regulation and bureaucracy since President Franklin D. Roosevelt’s New Deal in the 1930s.

The court has now provided a formula for a counterattack: by finding that a regulatory dispute is a “major legal issue,” judges can require an agency to show that its action was specifically authorized by Congress – and the same judges will decide, with predictable certainty. results, if the regulators passed this test.

With three judges appointed by President Donald Trump, it’s the most conservative court in decades, and legal historians have told the New York Times and other media that the term just ended was the most conservative since 1931.

Similar majorities overruled Roe v. Wade’s 1973, which established a constitutional right to abortion and allowed adults to carry concealed firearms outside the home, reversing restrictions in California and other states. Judges handed down multiple rulings in favor of religious conservatives, forcing Maine to fund private religious schools, forcing Philadelphia to fund a Catholic agency that refused to place adoptive children with same-sex couples, and rejecting a high school’s bid to suspend a football coach who held post-match prayers at the 50-yard line, where he was joined by players from both teams.

The decision in West Virginia v. EPA stepped in on the last day of the term. Although Roberts’ opinion was the first of a majority of courts to declare that a case presented a major legal issue, he cited previous cases that used different vocabulary to reach similar conclusions.

In 2000, for example, the court ruled that the government lacked the power to regulate tobacco products, a loophole that Congress closed with a new law in 2009. In 2006, the justices ruled 6-3 , with Roberts disagreeing, that federal drug laws do not allow the George W. Bush administration to sue Oregon doctors for prescribing deadly drugs to terminally ill patients.

Most recently, when the court ruled 6-3 in January that the Biden administration had no authority to require workers at major employers to be vaccinated against COVID-19 or undergo weekly testing and wear masks at work, Justices Gorsuch, Alito and Clarence Thomas said in a concurring opinion that the decision was based on the “major issues doctrine.” The unsigned majority opinion did not use those words, but said, “We expect Congress to speak clearly when authorizing an agency to exercise powers of great economic and political significance.”

In other words, said Marjorie Cohn, a retired professor at the Thomas Jefferson School of Law in San Diego and former president of the National Lawyers Guild, “the court takes it upon itself to make those decisions that Congress has delegated to the experienced federal agency.”

Under this doctrine, she said, “a right-wing majority in the Supreme Court will take it upon itself to strike down regulations that reduce profits under the guise of protecting the separation of powers.”

A less bleak forecast came from Daniel Farber, a UC Berkeley law professor and faculty director of the school’s Center for Law, Energy and the Environment.

The doctrine, he acknowledged, allows a majority of a court to define any important rule as a “major issue” and decide that it has not been sufficiently substantiated. “This is a court that is not shy about pushing its weight,” Farber said.

But unlike far-right justices like Gorsuch and Alito, he said, “what I think Roberts is trying to do is shift the focus…on to whether the agency stays in its lane, like regulating emissions, or going into another line of business like regulating the power grid.

“I think his fundamental objection is that the EPA is using a little (regulatory) pedal in the Clean Air Act and using it to take over the world. This goes beyond the role Congress has given them in addressing emissions from specific sources to try to change the entire energy system.

These assessments could be tested soon. During Term 2022-23, which begins in October, the court will hear arguments about whether the EPA has authority under the Clean Water Act to protect inland waterways and areas. wetlands, or only those waters which flow continuously into navigable rivers, lakes or bays. The court upheld the agency’s broader reach in a 5-4 decision in 2006, but it seems reasonable to predict that opponents in the upcoming case will describe the scope of its regulatory powers as a “major legal issue.” “.

Bob Egelko is a writer for the San Francisco Chronicle. Email: [email protected]: @BobEgelko