West Virginia v. EPA and the Future of Tech Regulation
This term, in West Virginia v. EPA, the U.S. Supreme Court held that the U.S. Environmental Protection Agency (EPA) could not compel a nationwide shift away from coal-powered electricity generation. The Court reasoned that it would not presume that Congress delegated a decision of “such magnitude and consequence” to the EPA absent a clear statement. This decision – and its invocation of the major questions doctrine – portends that regulations governing broadband, as well as new and emerging technologies, may now be more vulnerable to legal challenges.
The Supreme Court’s Decision
West Virginia v. EPA is a case about the EPA’s regulatory authority under Section 111 of the Clean Air Act. That provision permits the EPA to set “standards of performance” for new power plants. It also contains an ancillary clause that requires the EPA to set “standards of performance” for existing power plants – but only where those plants emit pollutants not already regulated under other provisions of the Clean Air Act. Under both provisions, the EPA (1) determines the “best system of emission reduction” and then (2) sets emission limits that reflect such a system.
In 2015, the EPA promulgated a rule – called the “Clean Power Plan” – that addressed carbon dioxide from existing power plants. The Clean Power Plan determined the “best system of emission reduction” for existing plants by analyzing not only what was achievable using new technologies but also what was achievable through shifting generation away from coal power plants to cleaner forms of energy production – such as natural gas, wind, or solar – and through participation in a cap-and-trade program. The Clean Power Plan then set its emissions limit such that existing coal power plants would be forced to shift to cleaner technologies.
The question before the Court was whether, pursuant to the Clean Power Plan, the EPA could use its ancillary authority under Section 111(d) of the Clean Air Act “to compel the transfer of power generating capacity from existing [coal] sources to wind and solar.” The Supreme Court – in a majority opinion written by Chief Justice Roberts – found that it could not and that the EPA had acted beyond the scope of its statutory authority.
The Court’s decision rested on its major questions doctrine – an interpretive canon providing that “[e]xtraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.” The Court found that the EPA claimed such an extraordinary grant of regulatory authority when it promulgated the Clean Power Plan because it (1) claimed broad authority to “restructure the American energy market,” (2) relied on vague language in a rarely used ancillary provision as the source of that authority, and (3) acted where “Congress had conspicuously and repeatedly declined to enact itself.” Thus, the Court found that the major questions doctrine “counsel[ed] skepticism toward [the] EPA’s claim” of authority and that the EPA could “overcome that skepticism” only by “point[ing] to clear congressional authorization to regulate in that manner.” After examining the statute, the Court found that the EPA fell short of such a clear statement of authorization.
The 5-4 majority generated two additional opinions. First, Justices Gorsuch and Alito concurred, opining that the major questions doctrine and its clear statement rule act as important guardrails against expansive delegations of authority from Congress to the Executive. They also offered guiding principles for determining when the major questions doctrine should apply and what kinds of congressional authorization would satisfy its clear statement rule. Justices Kagan, Breyer, and Sotomayor dissented, criticizing the majority’s application of the major questions doctrine as atextual and insufficiently deferential to Congress.
The Implications for Broadband and Other Tech Regulation
West Virginia v. EPA suggests that agency regulations addressing broadband, as well as new and emerging technologies, may now be more vulnerable to legal challenges. As an initial matter, both the majority opinion and Gorsuch’s concurrence cite favorably to then-Judge Kavanaugh’s separate opinion in US Telecom v. FCC, which reasoned that Congress had not clearly delegated authority to the FCC to adopt “net neutrality” rules for broadband providers under Title II of the Communications Act. This suggests that any attempt by a future FCC to reclassify broadband as a Title II service and reinstate “net neutrality” rules could be met by fierce resistance at the Supreme Court.
With respect to new and emerging technologies, consider the basic problem the major questions doctrine is designed to solve: “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” New technologies often fit this bill. For example, Congress could not have anticipated the internet in 1934 when it instructed the Federal Communications Commission to “make available ... [a] world-wide ... communication service” or all kinds of digital services in 1914 when it tasked the Federal Trade Commission with tackling “unfair methods of competition.” To be sure, these two particular statutes have been amended, but agencies often invoke provisions “delegat[ing] broad authority” to regulate products and services “that have transcended in complexity and power far beyond the specific technologies known” at the time of statutory enactment.
In addition, agencies seeking to regulate new technologies often trigger the kinds of factors the Court has found relevant in identifying major-questions cases. For example, regulating new technology often carries “great political significance” and encompasses “earnest and profound debate across the country.” New technologies subjected to regulation may also be intertwined with “significant portion[s] of the American economy[.]” Claims of agency authority under these circumstances are more likely to trigger the kind of judicial skepticism recognized in the Supreme Court’s major questions cases. Entities building an administrative record before a federal agency would be wise to keep these factors in mind.
To be sure, West Virginia v. EPA will not preclude all regulations of new and emerging technologies. Not every tech regulation will present a major question. As the dissent portends, identifying regulations that trigger major-questions scrutiny will likely spawn vigorous disagreements about when a regulation is “anomalous” or “raise[s] an eyebrow.” And even tech regulations that present major questions may still be valid if the underlying statute offers a “clear congressional authorization to regulate in [the chosen] manner.”
However, West Virginia v. EPA opens the door to legal challenges where an agency uses vague or general statutory provisions to assert great and newfound power over large sectors of the American economy – a subset of cases that includes broadband and is disproportionately likely to involve new and emerging technologies.
 W. Virginia v. Env’t Prot. Agency, 597 U.S. ____, ____ (2022) (slip op., at 31), https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf.
 See id. at ____ –____ (slip op., at 1–2).
 See id. at ____ –____ (slip op., at 4–5); accord 42 U.S.C. § 7411(a)(1), (b).
 See id. at ____ (slip op., at 6); accord 42 U.S.C. § 7411(d).
 See id. at ____–____ (slip op. at 4–5).
 Id.; accord Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64662 (Oct. 23, 2015).
 W. Virginia, at ____ (slip op. at 7–9).
 Id. at ____ (slip op. at 10).
 See id. at ____–____ (slip op. at 16–20) (cleaned up).
 See id. at ____–____ (slip op. at 20–28).
 Id. at ____ (slip. op. at 28) (citations and quotations omitted).
 See id. at ____–____ (slip op. at 28–31).
 See id. at ____–____ (Gorsuch, J., concurring) (slip op. at 1–9).
 See id. at ____–____ (Gorsuch, J., concurring) (slip op. at 9–16).
 See generally id. (Kagan, J., dissenting).
 See id. at ____ (slip op. at 19) (citing United States Telecom Ass’n v. FCC, 855 F. 3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc)); see also id. at ____ (Gorsuch, J., concurring) (slip op. at 12) (same).
 Id. at ____–____ (slip op. at 20).
 See Pub. L. No. 73-416, § 1, 48 Stat. 1064 (1934).
 See Pub. L. No. 63-203, § 5, 38 Stat. 717, 719 (1914).
 Southwestern Bell v. FCC, 19 F.3d 1475, 1484 (D.C. Cir. 1994); accord W. Virginia, at ____ (Kagan, J., dissenting) (slip op., at 30) (noting that “Congress usually can’t predict the future,” nor “keep track of and respond to fast-flowing development as they occur,” especially “when it comes to scientific and technical matters”).
 See W. Virginia, at ____ (Gorsuch, J., concurring) (slip op., at 9) (citations and quotations omitted).
 Id. at ____ (Gorsuch, J., concurring) (slip op., at 10) (citations a quotations omitted).
 Id. at ____ (Kagan, J., dissenting) (slip op., at 18–28)
 Id. at ____ (slip. op. at 28) (citations and quotations omitted).