The decision on West Virginia v. EPA came down today, and West Virginia won in a relatively narrow ruling. Let’s assume that you believe, as I do, that the decision should have gone the other way on the merits. In that case, then how you should think about this depends on whether you believe that the United States is at war. More specifically, whether you believe that the United States is in a total war, like the Civil War or WW2.
If you believe the United States is or should be on a war footing against global warming, then the ruling is a travesty. In a total war, the Constitution still holds, but errs on the side of victory. After all, to paraphrase Justice Robert Jackson, the Constitution is not a suicide pact. SCOTUS fears what exactly from letting the EPA regulate carbon emission? Imposing statewide caps on carbon emission is not exactly a violation of the Bill of Rights. In this view, limiting executive power to prevent some hypothetical future abuse is no more justifiable now than it would be in the middle of a foreign invasion.
OTOH, if you don’t believe that the United States is at a war footing, then this decision did not change very much. It isn’t scary and the Gorsuch concurrence is downright reassuring.

Chief Robert’s decision
Let’s start with Chief Justice Roberts’ decision. He first finds that the petitioners have standing because the Clean Power Plan (CPP) rule could be reimposed. Justice Kagan agrees with this, I will add.
The Chief Justice then states that the CPP was based on the interpretation of the phrase “best system for emission reduction.” The EPA argued that the best system meant allowing plants that could not effectively reduce emissions to trade their emissions for plants that could.
Finally, the Chief Justice then argues that the above claim is nonsense. In the 52-year history of the Clean Air Act, the agency had never issued industry-wide limits. Calling “generation shifting” a “system” denuded the word “system” of all meaning. Therefore, the EPA was clearly exceeding Congressional intent. In a peacetime context, this is justifiable. I happen to think it’s incorrect, but I’m unworried about regulatory slippery slopes.
The Gorsuch concurrence
More interesting is the concurrence by Alito and Gorsuch. Do they presage a truly radical attack on American governance? Interestingly, no. First, they justify the “major questions doctrine” with the words of Chief Justice Marshall, writing in 1825:
“Important subjects . . . must be entirely regulated by the legislature itself,” even if Congress may leave the executive “to act under such general provisions to fill up the details.”
After some long-windedness, they end by stating that if Congress delegated too much power to the executive, we would end with “vast numbers of laws changing with every new presidential administration.” They also cite ICC v Cincinnati (1897):
“That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language. The words and phrases efficacious to make such a delegation of power are well understood, and have been frequently used, and if Congress had intended to grant such a power to the [agency], it cannot be doubted that it would have used language open to no misconstruction, but clear and direct.”
Interestingly, they don’t say that Congress can’t delegate its legislative powers, just that it shouldn’t delegate too much. In fact, by citing ICC v Cincinnati, they implicitly admit that some delegation is entirely kosher.
They then provide a test! A vague test, but a test. A regulation violates the major questions doctrine if:
It deals with a “matter of great political significance.” This test is clearly violated, they aver, when “Congress has considered and rejected bills authorizing something akin to the agency’s proposed course of action.”
It encompasses a “significant portion of the American economy.” They do not provide a dollar figure or a percent of GDP, but they give examples: the tobacco industry, telecoms rate regulation, and the suspension of local housing laws.
It “intrudes into an area that is the particular domain of state law.” Here, however, they offer no guidance as to what that might mean. So if you want to worry, worry here.
They then list how you would know if Congress clearly intended an action, which would make the above tests moot. Their tests mostly boil down to reading what the law said, but there is one surprising wrinkle:
“Courts may examine the agency’s past interpretations of the relevant statute.”
You got it. Justice Gorsuch just wrote that if an agency acted like something was authorized by Congress in the past, then the courts ought to assume that Congress authorized that something.
In other words, the concurrence is less than radical. In fact, given what Justice Gorsuch has written on other occasions, you could find it reassuring.
Conclusion
Your reaction to the ruling should depend on your position on global warming. (I am deliberately not saying climate change, a phrase popularized to reduce public anxiety.) If you think we are in equivalent of 1942, then the decision is unconscionable logic-chopping.
But if you think the situation is merely grave — it’s 1938 or 1949, not 1942 — then the decision is wrongheaded but not specious. Moreover, the Gorsuch concurrence lays out a series of tests and accepts that Congress can in fact delegate its legislative authority.
Take it as a victory and go fight for change, either on the floor of Congress or your local statehouse. Or start your own green business and beat the carbon emitters on their own playing field! Hell, do both.
Either way, don’t go around getting demoralized by SCOTUS decisions. Nothing is closed off and the future will be what we make it.