The Impact of West Virginia v. EPA on Challenges to FERC’s Authority Under the Major Questions Doctrine
Donald L. R. Goodson, Institute for Policy Integrity, New York University School of Law
In the Spring 2022 issue of this publication, Harvey Reiter highlighted a significant legal development that implicated the authority of federal regulatory agencies, including the Federal Energy Regulatory Commission (FERC). Specifically, Reiter summarized recent applications of the nascent “major questions doctrine” in the Supreme Court’s decisions in Alabama Association of Realtors v. Department of Health & Human Services (2021)[i] and National Federation of Independent Business v. OSHA (2022),[ii] which he interpreted as potentially allowing courts to strip an agency of its power to regulate if they determine “that an agency’s policy initiative was too big and too important to be entrusted to it.”[iii] Reiter queried how some of the most consequential rulemakings from FERC (or its predecessor, the Federal Power Commission) would have fared under the Supreme Court’s analysis in Alabama Realtors and NFIB. And he concluded that those decisions might spark challenges to future or pending FERC actions, including proposed revisions to Order No. 1000’s regional transmission-planning and cost-allocation rules (Transmission Rulemaking)[iv] and updated draft policy statements on certification of new interstate natural gas facilities (Draft Policy Statements).[v] Reiter’s observations have proven to be prescient, as critics have tried to leverage the major questions doctrine to attack both of these FERC initiatives.
This article picks up where Reiter’s left off to address West Virginia v. EPA—the most recent Supreme Court case involving the major questions doctrine, and the first Supreme Court majority opinion expressly referencing and exploring the doctrine.[vi] In his 2022 article, Reiter correctly noted Alabama Realtors and NFIB relied on some worrisome factors to invoke the doctrine. Fortunately (in this author’s view), West Virginia does not rely on some of the most troubling factors from those earlier decisions, such as the number of persons affected.[vii] Rather, to determine whether the major questions doctrine applies, West Virginia’s framework asks whether the action (1) is “unheralded” and (2) represents a “transformative” change in the agency’s authority.[viii] If the answer to these questions is yes, the agency must point to “clear congressional authorization” for its action.[ix] West Virginia is far from a model of clarity, but the majority opinion’s analysis reflects an attempt to cabin the doctrine to only “extraordinary cases.”[x] Under that analysis, FERC’s Transmission Rulemaking and Draft Policy Statements should not trigger the doctrine because they are neither unheralded nor transformative.
While the West Virginia majority opinion seems to cabin the doctrine, Justice Gorsuch’s concurring opinion tries to expand it by (1) introducing factors for triggering the doctrine that the majority opinion omits and (2) recasting the doctrine as a clear-statement rule.[xi] Perhaps most troubling for FERC is Justice Gorsuch’s reliance on “‘intru[sion] into an area that is the particular domain of state law’” as an additional factor that may trigger the major questions doctrine.[xii] Drawing on that statement, seventeen States have argued that FERC’s Transmission Rulemaking triggers the doctrine because it “implicates” the jurisdictional divide in the Federal Power Act (FPA) between state and federal authority.[xiii] Others have lobbed similar arguments at the Draft Policy Statements, citing the jurisdictional divide in the Natural Gas Act (NGA).[xiv]
But there is already a well-established body of case law delineating the divide between federal and state jurisdiction in the FPA and the NGA.[xv] Inserting state interests into the major questions doctrine risks muddying that longstanding divide and creating uncertainty for FERC’s authority.
II. West Virginia Eschews a Multi-Factor Test of Economic and Political Significance for the Major Questions Doctrine, Asking Instead Whether the Agency’s Action Is Unheralded and Transformative
In his 2022 article, Reiter lamented the Supreme Court’s reliance in Alabama Realtors and NFIB on (1) previously unclaimed agency authority and (2) the number of persons affected. He rightly criticized both: Courts have rejected similar novelty challenges to
FERC’s authority because “no inference may be drawn from prior non-use,”[xvi] and “[r]ulemakings, which establish regulations of general applicability, will almost by definition affect large numbers of businesses and persons.”[xvii] West Virginia relies on the first factor, but not the second—in fact, West Virginia’s legal analysis does not turn on any factors of economic significance, like the number of persons affected.
Before explaining this point, some background on West Virginia may be helpful. The case involved Section 111(d) of the Clean Air Act, which authorizes the Environmental Protection Agency (EPA) to set a “standard of performance” for power plants’ emission of certain air pollutants, including greenhouse gases.[xviii] “That standard must . . . reflect the ‘best system of emission reduction’ that [EPA] has determined to be ‘adequately demonstrated’ for the particular category” of power plant.[xix] The question in West Virginia was whether Section 111(d) authorizes EPA to issue the Clean Power Plan (CPP), which, among other things, used a purposeful “generation shifting” approach to determine the best system of emission reduction.[xx]
The Supreme Court began by announcing that, in cases involving agency authority, different analyses apply depending on whether the case is “ordinary” or “extraordinary.”[xxi] Extraordinary cases have been ones “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.’”[xxii] The Supreme Court then catalogued such cases, describing them as embodying the “major questions doctrine.”[xxiii]
As Natasha Brunstein and I explain elsewhere, although the Supreme Court referenced economic and political significance in the prelude to its legal analysis, when it actually determined whether the CPP triggered the doctrine, it did not rest on some amorphous assertion of economic and political significance.[xxiv] Nor did the Supreme Court march through a list of significance factors—like the amount of money involved, overall economic impact, number of persons affected, or degree of public attention.[xxv] The Supreme Court instead explained that “this is a major questions case” because “EPA ‘claim[ed] to discover in a long-extant statute an unheralded power’ representing a ‘transformative expansion in [its] regulatory authority.’”[xxvi] The rest of the Supreme Court’s legal analysis of the triggers for the doctrine then tracked these two considerations, examining (1) whether the CPP was “unheralded,” i.e., “unprecedented,” and (2) whether it represented a “transformative” change in EPA’s authority.[xxvii]
That the Supreme Court did not march through a multi-factor list of indicators of economic and political significance is, for lack of a better word, significant. Several parties used a multi-factor test of economic and political significance in their briefs.[xxviii] The Supreme Court did not. And there are good reasons for that seemingly deliberate choice. Any test that relies on malleable indicators of significance amounts to little more than you “know it when you see it.”[xxix] Such a test would also call for a political judgment rather than a judicial one.[xxx] And far from cabining the doctrine to extraordinary cases, a test turning on things like the amount of money involved or number of persons affected would sweep in hundreds of agency actions a year (if not more).
The broad reach of an amorphous test centered on economic and political significance would arguably capture many FERC actions, including its Transmission Rulemaking, which will have widespread impact on utilities, households, and others in between. As Reiter aptly observed, that is inherent in nearly any generally applicable regulation of the energy sector.[xxxi] (Though that is not necessarily true of the Draft Policy Statements: They merely provide guidance on FERC’s case-by-case considerations when deciding whether individual pipeline applications satisfy the “public convenience and necessity” standard,[xxxii] and it is unclear whether the number of pipelines approved or disapproved under that guidance will be meaningfully different than before.) But West Virginia’s two-prong framework should have more limited application than the type of amorphous test of economic and political significance advanced in the West Virginia briefing and implicitly rejected by the Supreme Court.
For example, FERC’s Transmission Rulemaking should not trigger the major questions doctrine under West Virginia’s two-prong analysis because it is neither unprecedented nor transformative.[xxxiii] Most notably, in Order No. 1000, FERC regulated regional transmission planning and cost allocation in response to similar concerns raised in the Transmission Rulemaking about the evolving generation mix.[xxxiv] FERC can thus readily point to a past analogous exercise of authority. The D.C. Circuit upheld Order No. 1000, explaining that FERC’s “recognizing that state and federal policies might affect the transmission market and direct[ing] transmission providers to consider that impact in their planning decisions . . . fits comfortably within [its] authority.”[xxxv] That reasoning alone also demonstrates that FERC’s Transmission Rulemaking does not represent a transformative change in its authority.
For similar reasons, the Draft Policy Statements should not trigger the major questions doctrine either.[xxxvi] Among other relevant precedents, FERC’s 1999 Policy Statement on certification of new interstate pipeline facilities, as clarified in 2000, stated that FERC would give weight to “the overall benefits to the environment of natural gas consumption” (e.g., as compared to coal consumption).[xxxvii] The Draft Policy Statements similarly explain that FERC will give weight to upstream and downstream greenhouse gas emissions.[xxxviii] Both represent analogous exercises of FERC’s authority to consider indirect environmental effects, meaning the Draft Policy Statements are not unheralded. Nor do they represent a transformative change in FERC’s authority because they merely endorse consideration of an effect similar to previously considered effects as part of an analysis that FERC (or its predecessor) has been doing for decades.[xxxix] Stated differently, FERC’s “power over American industry” will look much the same under the Draft Policy Statements as before.[xl]
II. The West Virginia Concurring Opinion Would Create Uncertainty for FERC
Justice Gorsuch authored a concurring opinion that materially differs from the majority opinion by offering additional factors as potential triggers for the major questions doctrine. For example, Justice Gorsuch stated that the “major questions doctrine may apply when an agency seeks to ‘intrud[e] into an area that is the particular domain of state law.’”[xli] Justice Gorsuch did not explain exactly how intrusion into an area that is the particular domain of state law fits into the major questions analysis. He observed only that it is a “suggestive factor” for determining “when an agency action involves a major question for which clear congressional authority is required.”[xlii]
This “suggestive factor” is problematic as a general matter.[xliii] But if it were adopted as a trigger for the major questions doctrine, it would be especially problematic for FERC’s authority. As the Supreme Court explained in FERC v. Electric Power Supply Association (EPSA), the FPA’s “statutory division” of authority between FERC and the States over the electricity sector “generates a steady flow of jurisdictional disputes because—in point of fact if not of law—the wholesale and retail markets in electricity are inextricably linked.”[xliv] Much the same could be said of the NGA’s jurisdictional divide.[xlv] The case law interpreting both statutes’ nearly century-old “bright line” between FERC and state authority is admittedly complicated. But, as others have persuasively argued, it provides an administrable framework for resolving the “steady flow of jurisdictional disputes” between FERC and the States, even when applied to the modern energy sector.[xlvi]
Drawing on Justice Gorsuch’s concurring opinion, however, critics of FERC’s actions have confusingly invoked the major questions doctrine in combination with arguments based on the FPA’s and NGA’s jurisdictional divide. For example, seventeen States filed comments opposing FERC’s Transmission Rulemaking, arguing that “[n]ational scale energy grid regulation is a ‘major question’ . . . because it implicates a unique and complex jurisdictional divide between State and federal regulatory authority.”[xlvii] The States separately argued that, “[i]n addition to the lack of ‘clear congressional authorization,’ that would be required to survive review under the major questions doctrine, FERC’s goals here are also foreclosed by statutory prohibitions in the [FPA],” because the “[S]tates, not [FERC], are the entities responsible for shaping the generation mix.”[xlviii] Private parties made similar arguments opposing the Draft Policy Statements, arguing that they triggered the major questions doctrine because the NGA “specifically left regulation of upstream and downstream activities to the States.”[xlix]
How would a court resolve these state-interest arguments? Would it need to decide whether FERC’s actions triggered the major questions doctrine by determining whether such actions violated the FPA’s or NGA’s jurisdictional divide? If so, the major questions doctrine would be irrelevant: If FERC improperly crossed the jurisdictional divide, its actions would be unauthorized without any need to proceed further in the major questions analysis; if FERC’s actions did not cross the jurisdictional divide, no further major questions analysis would be needed either.
Or would merely “implicat[ing]” the divide be enough to trigger the major questions doctrine, as the seventeen States seem to suggest? If so, a court would then proceed to determine whether FERC had “clear congressional authorization” for its action. But how would the search for “clear congressional authorization” differ from what a court would normally do when resolving the “steady flow of jurisdictional disputes” under the FPA and NGA?
The answer to that question may ultimately turn on how one views “clear congressional authorization.” Brunstein and I read West Virginia’s use of clear congressional authorization as depriving the agency of deference and presuming the agency’s action is not authorized once a court finds the major questions doctrine is triggered, but that presumption can be overcome if the agency persuades a skeptical court that the “correct reading” of the statute authorizes the action.[l] Under that reading of West Virginia, a skeptical court would scrutinize FERC’s assertion of authority more closely than in the ordinary case, but it would not require magic statutory words to authorize FERC’s action.
Others, however, including Justice Gorsuch, equate “clear congressional authorization” with a clear-statement rule—an aggressive canon of statutory interpretation that allows courts to choose a less plausible statutory reading (over the more natural one) in certain circumstances.[li] As Brunstein and I explain, the majority opinion in West Virginia appears to have carefully omitted the phrase “clear statement” from its legal analysis, perhaps to avoid adopting such an aggressive canon of interpretation.[lii]
But if the major questions doctrine is effectively a clear-statement rule, it is uncertain how such a rule would operate in practice when applied to the FPA and NGA. For example, would the FPA’s authorizing FERC to regulate “the sale of electric energy at wholesale in interstate commerce,” including both wholesale electricity rates and any rule or practice “affecting” such rates,[liii] have provided the requisite clear statement for FERC to regulate the compensation that operators pay for demand response bids? The EPSA Court resolved that jurisdictional dispute in FERC’s favor just a few years ago.[liv] But “demand response does not fit neatly within the FPA’s jurisdictional boundaries,” namely because “[i]t is not a sale for resale” and “the entities that participate in wholesale markets through demand response programs are ordinarily retail purchasers.”[lv] So it is far from certain that EPSA would have come out the same way if the Supreme Court had required a clear statement in the FPA authorizing FERC to regulate compensation for demand response bids.[lvi] Similar questions arise concerning the D. C. Circuit’s opinion upholding Order No. 1000 given the court’s reliance on Chevron deference to reject challengers’ arguments.[lvii]
These questions are academic, however, because the majority opinion controls and does not adopt intrusion into an area that is the particular domain of state law as a relevant factor in the major questions analysis nor endorse the clear-statement label for the doctrine.[lviii] But that will not stop parties from trying to use Justice Gorsuch’s concurring opinion. And some courts have been open to applying his concurring opinion.[lix] So far, none of those cases have involved the FPA or NGA. But any extension of the concurring opinion to those statutes could muddy their jurisdictional divide and create uncertainty for FERC—or at least headaches for courts trying to resolve these complicated arguments.
[i] Ala. Ass’n of Realtors v. Dept. of Health & Human Servs., 141 S. Ct. 2485 (2021) (per curiam) (“Alabama Realtors”).
[ii] Nat’l Fed. of Ind. Bus. v. OSHA, 142 S. Ct. 661 (2022) (per curiam) (“NFIB”).
[iii] Harvey Reiter, Would FERC’s Landmark Decisions Have Survived Review Under the Supreme Court’s Expanding “Major Questions Doctrine” and Could the Doctrine Stifle New Regulatory Initiatives at 3-4, EBA Brief Vol. 3, Iss. 1 (Spring 2022) (“Reiter”).
[iv] Notice of Proposed Rulemaking, Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, 179 F.E.R.C. ¶ 61,028 (2022).
[v] Certification of New Interstate Natural Gas Facilities, 178 F.E.R.C. ¶ 61,107 (2022); Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Reviews, 178 F.E.R.C. ¶ 61,108 (2022) (Draft GHG Policy Statement).
[vi] W. Virginia v. EPA, 142 S. Ct. 2587 (2022). The Supreme Court may soon address the major questions doctrine again in two pending cases, Biden v. Nebraska, No. 22-506, and Department of Education v. Brown, No. 22-535.
[vii] See generally Natasha Brunstein and Donald L. R. Goodson, Unheralded and Transformative: The Test for Major Questions After West Virginia, 47 Wm. & Mary Env’t L. & Pol’y Rev. 47 (2022).
[viii] W. Virginia, 142 S. Ct. at 2610 (quoting Util. Air Regul. Grp. v. EPA (UARG), 73 U.S. 302, 324 (2014)).
[ix] Id. at 2614 (quoting UARG, 573 U.S. at 324).
[x] Id. at 2608.
[xi] Id. at 2620 (Gorsuch, J., concurring); see also Brunstein & Goodson, supra note 8, at 95–100.
[xii] W. Virginia, 142 S. Ct. at 2621 (Gorsuch, J., concurring) (quoting Alabama Realtors, 141 S. Ct. at 2486–87).
[xiii] Comments of State of Texas et al., Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, F.E.R.C. Docket No. RM21-17-000 at 3 (Sept. 19, 2022).
[xiv] Supplemental Comments of Enbridge Gas Pipelines, F.E.R.C. Docket Nos. PL18-1 & PL21-3 at 15 (Aug. 12, 2022).
[xv] See generally Joshua C. Macey & Matthew Christiansen, Long Live the Federal Power Act’s Bright Line, 134 Harv. L. Rev. 1360 (2021) (examining recent Supreme Court precedents addressing the Federal Power Act’s “bright line” jurisdictional divide between state and federal control over the energy sector).
[xvi] Reiter, supra note 4, at 9 (quoting Assoc. Gas Distribs. v. FERC, 824 F.2d 981, 1001 (D.C. Cir. 1987)).
[xviii] West Virginia, 142 S. Ct. 2587, 2599 (2022) (quoting 42 U.S.C. § 7411(a)(1)).
[xix] Id. (quoting §§ 7411(a)(1), (b)(1), (d)).
[xx] Id. at 2603–05. “Generation shifting describes the shift from high-polluting energy sources on the grid—like coal plants—to lower-polluting sources—like gas-fired turbines, renewable energy sources, and energy efficient technologies.” Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 985 (2021).
[xxi] West Virginia, 142 S. Ct. 2587, at 2608.
[xxii] Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000)).
[xxiii] Id. at 2608–09.
[xxiv] Brunstein & Goodson, supra note 8, at 81–82, 87–93.
[xxvi] West Virginia, 142 S. Ct. at 2610 (quoting UARG, 573 U.S. at 324).
[xxvii] See Brunstein & Goodson, supra note 8, at 74–82. Notably, the Court emphasized similar factors in NFIB, the major questions case decided just before West Virginia. See NFIB,142 S. Ct. at 666 (noting the “lack of historical precedent,’ coupled with the breadth of authority that [OSHA] now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach”).
[xxviii] Brunstein & Goodson, supra note 8, at 88–91.
[xxix] U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 481 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc); see also Natasha Brunstein and Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 317, 335–36 (2022) (referring to “regulatory costs, the number of public comments, the number of beneficiaries, the level of public salience, and even agencies’ intent” as “arbitrary and malleable metrics”).
[xxx] Cf. Chad Squitieri, Who Determines Majorness, 44 Harv. J. of Law & Pub. Pol’y 463, 504 (2021) (“[T]he major questions doctrine’s call for a consideration of both ‘economic and political significance’ ensures the inquiry is necessarily political by definition.”).
[xxxi] Reiter, supra note 4, at 10.
[xxxii] Draft GHG Policy Statement, supra note 4, at PP 106–12.
[xxxiii] Supplemental Comments of the Harvard Electricity Law Initiative and the Institute for Policy Integrity at New York University School of Law, Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, F.E.R.C. Docket No. RM21-17-000 (Dec. 6, 2022).
[xxxiv] Id. at 4; see also id. at 4–6 and Appendix A (identifying other relevant regulatory precedents).
[xxxv] S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 48–49 (D.C. Cir. 2014).
[xxxvi] See generally Comments of Legal Scholars Supporting FERC’s Authority to Consider Climate Impacts in Certification Proceedings Under Section 7 of the Natural Gas Act, F.E.R.C. Docket Nos. PL18-1 & PL21-3 (Aug. 12, 2022); Supplemental Comments of the Institute for Policy Integrity at New York University School of Law, F.E.R.C. Docket Nos. PL18-1 & PL21-3 (Oct. 20, 2022).
[xxxvii] Order Clarifying Statement of Policy, Certification of New Interstate Pipeline Facilities, 90 F.E.R.C.
¶ 61,398 (2000).
[xxxviii] Draft GHG Policy Statement, supra note 4, at PP 106–12.
[xxxix] See generally Romany M. Webb, Climate Change, FERC, and Natural Gas Pipelines: The Legal Basis for Considering Greenhouse Gas Emissions Under Section 7 of the Natural Gas Act, 28 N.Y.U. Env’t L. J. 179, 190–94 (2020).
[xl] West Virginia, 142 S. Ct. 2589, 2612 (2022) (quoting Indus. Union Dept., AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 645 (1980) (plurality op.).
[xli] West Virginia, 142 S. Ct. at 2621 (Gorsuch, J., concurring) (quoting Alabama Realtors, 2486–87).
[xlii] West Virginia, 142 S. Ct. at 2620, 2622.
[xliii] Among other things, there is already a separate canon—the federalism clear-statement rule—to address such arguments. Justice Gorsuch stated that “the major questions doctrine and the federalism canon often travel together.” West Virginia, 142 S. Ct. at 2621 (Gorsuch, J., concurring). But it is not clear that they do. When the Court has listed the canonical precedents supporting, respectively, the federalism clear-statement rule and the major questions doctrine, it has provided a relatively well-defined universe of cases for each that do not overlap. Compare Bond v. United States, 572 U.S. 844, 858–59 (2014) (citing, as foundational federalism clear-statement cases, Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994); Solid Waste Agency of N. Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 174 (2001); United States v. Bass, 404 U.S. 336, 350 (1971)), with West Virginia, 142 S. Ct. at 2608–09 (citing, as relevant precedents for the major questions doctrine, Brown & Williamson, 529 U.S. at 159–60; Alabama Realtors, 141 S. Ct. at 2487; UARG, 573 U.S. at 310, 324; Gonzales v. Oregon, 546 U.S. 243, 267 (2006); NFIB, 142 S. Ct. at 665; Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001); MCI, 512 U.S. at 229 (1994); King v. Burwell, 576 U.S. 473, 486 (2015)). To support his observation that the two doctrines “often travel together,” Justice Gorsuch cited just one case. See West Virginia,142 S. Ct. at 2621 (Gorsuch, J., concurring) (citing Alabama Realtors,142 S. Ct. at 2486–87). To be fair, although Justice Gorsuch did not cite Gonzales v. Oregon for this proposition, that opinion arguably invokes both the major questions doctrine and the federalism clear-statement rule. 546 U.S. at 274. Still, that is just two decisions over roughly thirty years.
[xliv] FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 265 (2016); see also Nat’l Ass’n of Regul. Util. Comm’rs v. FERC, 964 F.3d 1177, 1181 (D.C. Cir. 2020) (“[T]he Court must once again referee the Federal Power Act’s jurisdictional line separating the Federal Energy Regulatory Commission’s jurisdiction over the federal wholesale market and States’ jurisdiction over facilities used in local distribution. This time, Petitioners argue FERC is off-sides in Order No. 841 by prohibiting States from barring electric storage resources on their distribution and retail systems from participating in federal markets.”).
[xlv] See, e.g., Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376 (2015) (“The pipelines’ behavior affected both federally regulated wholesale natural-gas prices and nonfederally regulated retail natural-gas prices. The question is whether the federal Natural Gas Act pre-empts these lawsuits.”).
[xlvi] See Macey & Christiansen, supra note 16, at 1365 (“A trio of recent Supreme Court cases has the potential to create an enduring jurisdictional framework that can accommodate the transition to the electricity grid of the future while respecting the FPA’s federalist vision.”); id. at 1369 (“Under that framework, every dispute involving the FPA’s jurisdictional divide can be resolved by answering no more than three questions.”).
[xlvii] Comments of State of Texas et al., Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, F.E.R.C. Docket No. RM21-17-000 at 3 (Sept. 19, 2022).
[xlviii] Id. at 4–5.
[xlix] Supplemental Comments of Enbridge Gas Pipelines, F.E.R.C. Docket Nos. PL18-1 & PL21-3 at 15 (Aug. 12, 2022).
[l] Brunstein & Goodson, supra note 8, at 84–87.
[li] See West Virginia v. EPA, 142 S. Ct. 2589, 2616 (2022) (Gorsuch, J, concurring) (“Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutional guarantees.”); see, also e.g., Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 109–10, 118 (2010). On separation of powers, Justice Gorsuch would also jettison the intelligible principle test for permissible delegations in favor of a much narrower test that would permit Congress to constitutionally delegate authority to agencies only to “fill up the details,” engage in “fact-finding,” or undertake “non-legislative responsibilities.” Gundy v. United States, 139 S. Ct. 2116, 2136–37 (2019) (Gorsuch, J., dissenting); see also West Virginia, 142 S. Ct. at 2617 (Gorsuch, J., concurring) (“The major questions doctrine works . . . to protect the Constitution’s separation of powers.”). In other words, if a clear-statement rule would permit a court to adopt a less plausible reading of a statute to avoid a separation-of-powers problem, Justice Gorsuch would find a lot of separation-of-powers problems to avoid.
[lii] Brunstein & Goodson, supra note 6, at 95–100
[liii] 16 U.S.C. §§ 824(b), 824e(a).
[liv] EPSA, 577 U.S. at 265.
[lv] Macy & Christiansen, supra note 16, at 1377.
[lvi] Justice Gorsuch was not on the Court when it decided EPSA; Justice Alito did not participate in the decision. See EPSA, 577 U.S. at 296.
[lvii] S.C. Pub. Serv. Auth., 762 F.3d at 54 (“The court reviews challenges to the Commission’s interpretation of the FPA under the familiar two-step framework of Chevron[.]”); id. at 58–59, 73, 76, 84, 86 (deferring to FERC’s interpretation of the FPA under Chevron).
[lviii] See West Virginia, 142 S. Ct. 2587, 2610–14 (2022) (explaining why “this is a major questions case” but omitting any discussion of intrusion on an area traditionally the domain of state law); see also Brunstein & Goodson, supra note 8, at 94–95.
[lix] Brown v. U.S. Dep’t of Educ., No. 4:22-cv-908, — F. Supp. 3d —, 2022 WL 16858525, at *12, *13 (N.D. Tex. Nov. 10, 2022), cert. granted before judgment sub nom. Dep’t of Educ. v. Brown, 143 S. Ct. 541 (2022) (relying on concurring opinion for factors triggering the major questions doctrine); see also Louisiana v. Becerra, No. 3:21-cv-4370, — F. Supp. 3d —, 2022 WL 4370448, at *10, *12 (W.D. La. Sept. 21, 2022) (relying on concurring opinion for meaning of “clear congressional authorization”).