New York Times Shadow Docket Papers Show Flimsy Foundations of the “Major Questions Doctrine” By David Doniger

Key Takeaways

• Supreme Court cited $480 billion cost, later proven false.
• EPA’s own estimate: $5‑8 billion annually, no upfront investments.
• Power sector met 2030 emissions target by 2019 at no cost.
• Major Questions Doctrine stems from regulation with zero economic impact.
• Since 2023, Court rarely grants emergency EPA stays.

Pulse Analysis

The Clean Power Plan, unveiled by the EPA in 2015, aimed to slash carbon emissions from U.S. power plants. When the rule reached the Supreme Court in West Virginia v. EPA (2016), Chief Justice Roberts invoked industry‑sponsored estimates that the regulation would cost roughly $480 billion, branding it the most expensive rule ever. Internal EPA calculations, however, projected a modest $5‑8 billion annual expense and no immediate capital outlays. Subsequent analysis shows the power sector achieved the 2030 emissions target by 2019, driven by falling natural‑gas and renewable prices, essentially at zero cost.

The 2022 West Virginia decision crystallized the Major Questions Doctrine, demanding clear congressional authorization for agencies to enact sweeping, economically transformative policies. Ironically, the doctrine was anchored to the Clean Power Plan—a rule that, contrary to the Court’s narrative, produced no measurable economic burden. By treating an unfounded cost claim as a factual baseline, the Court set a precedent that could be invoked to block future climate or technology regulations, even when the underlying data are speculative or inaccurate.

Since the controversial 2023 Ohio v. EPA stay, the Court has largely refrained from issuing emergency injunctions against EPA actions, denying stays on three additional rules in summer 2024. This retreat may reflect growing judicial discomfort with decisions predicated on dubious cost assumptions. For regulated industries, the shift could mean more regulatory certainty, while environmental groups anticipate a more level playing field for agency expertise. As the Supreme Court’s composition evolves, the durability of the Major Questions Doctrine—and its reliance on solid empirical foundations—will likely become a focal point of future litigation.