WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.
Nos. 20-1530, 20-1531, 20-1778 and 20-1780
SUPREME COURT OF THE UNITED STATES
June 30, 2022
597 U. S. ____ (2022)
OCTOBER TERM, 2021
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
WEST VIRGINIA ET AL. v. ENVIRONMENTAL PROTECTION AGENCY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20-1530. Argued February 28, 2022—Decided June 30, 2022*
In 2015, the Environmental Protection Agency (EPA) promulgated the Clean Power Plan rule, which addressed carbon dioxide emissions from existing coal- and natural-gas-fired power plants. For authority, the Agency cited Section 111 of the Clean Air Act, which, although known as the New Source Performance Standards program, also authorizes regulation of certain pollutants from existing sources under Section 111(d).
In the Clean Power Plan, EPA determined that the BSER for existing coal and natural gas plants included three types of measures, which the Agency called “building blocks.” 80 Fed. Reg. 64667. The first building block was “heat rate improvements” at coal-fired plants—essentially practices such plants could undertake to burn coal
more cleanly. Id., at 64727. This sort of source-specific, efficiency-improving measure was similar in kind to those that EPA had previously identified as the BSER in other Section 111 rules.
Building blocks two and three were quite different, as both involved what EPA called “generation shifting” at the grid level—i.e., a shift in electricity production from higher-emitting to lower-emitting producers. Building block two was a shift in generation from existing coal-fired power plants, which would make less power, to natural-gas-fired plants, which would make more. Ibid. This would reduce carbon dioxide emissions because natural gas plants produce less carbon dioxide per unit of electricity generated than coal plants. Building block three worked like building block two, except that the shift was from both coal and gas plants to renewables, mostly wind and solar. Id., at 64729, 64748. The Agency explained that, to implement the needed shift in generation to cleaner sources, an operator could reduce the regulated plant‘s own production of electricity, build or invest in a new or existing natural gas plant, wind farm, or solar installation, or purchase emission allowances or credits as part of a cap-and-trade regime. Id., at 64731–64732. Taking any of these steps would implement a sector-wide shift in electricity production from coal to natural gas and renewables. Id., at 64731.
Having decided that the BSER was one that would reduce carbon pollution mostly by moving production to cleaner sources, EPA then set about determining “the degree of emission limitation achievable through the application” of that system.
This Court stayed the Clean Power Plan in 2016, preventing the rule from taking effect. It was later repealed after a change in Presidential administrations. Specifically, in 2019, EPA found that the Clean
Power Plan had exceeded the Agency‘s statutory authority under Section 111(d), which it interpreted to “limit[ ] the BSER to those systems that can be put into operation at a building, structure, facility, or installation.” 84 Fed. Reg. 32524. EPA explained that the Clean Power Plan, rather than setting the standard “based on the application of equipment and practices
A number of States and private parties filed petitions for review in the D. C. Circuit, challenging EPA‘s repeal of the Clean Power Plan and its enactment of the replacement ACE rule. The Court of Appeals consolidated the cases and held that EPA‘s “repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act“—namely, that generation shifting cannot be a “system of emission reduction” under Section 111. 985 F. 3d 914, 995. The court vacated the Agency‘s repeal of the Clean Power Plan and remanded to the Agency for further consideration. It also vacated and remanded the ACE rule for the same reason. The court‘s decision was followed by another change in Presidential administrations, and EPA moved the court to partially stay its mandate as to the Clean Power Plan while the Agency considered whether to promulgate a new Section 111(d) rulе. No party opposed the motion, and the Court of Appeals agreed to stay its vacatur of the Agency‘s repeal of the Clean Power Plan.
Held:
1. This case remains justiciable notwithstanding the Government‘s contention that no petitioner has Article III standing, given EPA‘s stated intention not to enforce the Clean Power Plan and to instead engage in new rulemaking. In considering standing to appeal, the question is whether the appellant has experienced an injury “fairly traceable to the judgment below.” Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 4). If so, and a “favorable ruling” from the appellate court “would redress [that] injury,” then the appellant has a cognizable Article III stake. Ibid. Here, the judgment below
vacated the ACE rule and its embedded repeal of the Clean Power Plan, and accordingly purports to bring the Clean Power Plan back into legal effect. There is little question that the petitioner States are injured, since the rule requires them to more stringently regulate power plant emissions within their borders. The Government counters that EPA‘s current posture has mooted the prior dispute. The distinction between mootness and standing matters, however, because the Government bears the burden to establish that a once-live case has become moot. The Government‘s argument in this case boils down to its representation that EPA does not intend to enforce the Clean Power Plan prior to promulgating a new Section 111(d) rule. But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719. Here, the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting. Ibid. Pp. 14–16.
(a) In devising emissions limits for power plants, EPA “determines” the BSER that—taking into account cost, health, and other factors—it finds “has been adequately demonstrated,” and then quantifies “the degree of emission limitation achievable” if that best system were applied to the covered source.
Precedent teaches that there are “extraordinary cases” 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. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159–160. See, e.g., Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ____, ____; Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546 U. S. 243, 267; National Federation of Independent Business v. OSHA, 595 U. S. ____, ____. Under this body of law, known as the major questions doctrine, given both separation of powers principles and a practical understanding of legislative intent, the agency must point to “clear congressional authorization” for the authority it claims. Utility Air, 573 U. S., at 324. Pp. 16–20.
(b) This is a major questions case. EPA claimed to discover an
unheralded power representing a transformative expansion of its regulatory authority in the vague language of a long-extant, but rarely used, statute designed as a gap filler. That discovery allowed it to adopt a regulatory program that Congress had conspicuously declined to enact itself. Given these circumstances, there is every reason to “hesitate before concluding that Congress” meant to confer on EPA the authority it claims under Section 111(d). Brown & Williamson, 529 U. S., at 160.
Prior to 2015, EPA had always set Section 111 emissions limits based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly, see, e.g., 41 Fed. Reg. 48706—never by looking to a “system” that would reduce pollution simply by “shifting” polluting activity “from dirtier to cleaner sources.” 80 Fed. Reg. 64726. The Government quibbles with this history, pointing to the 2005 Mercury Rule as one Section 111 rule that it says relied upon a cap-and-trade mechanism to reduce emissions. See 70 Fed. Reg. 28616. But in that regulation, EPA set the emissions limit—the “cap“—based on the use of “technologies [that could be] installed and operational on a nationwide basis” in the relevant timeframe. Id., at 28620–28621. By contrast, and by design, there are no particular controls a coal plant operator can install and operate to attain the emissions limits established by the Clean Power Plan. Indeed, the Agency nodded to the novelty of its approach when it explained that it was pursuing a “broader, forward-thinking approach to the design” of Section 111 regulations that would “improve the overall power system,” rather than the emissions performance of individual sources, by forcing a shift throughout the power grid from one type of energy source to another. 80 Fed. Reg. 64703 (emphasis
The Government attempts to downplay matters, noting that the Agency must limit the magnitude of generation shift it demands to a level that will not be “exorbitantly costly” or “threaten the reliability of the grid.” Brief for Federal Respondents 42. This argument does not limit the breadth of EPA‘s claimed authority so much as reveal it: On EPA‘s view of Section 111(d), Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in the basic regulation of how Americans get their energy. There is little reason to think Congress did so. EPA has admitted that issues of electricity transmission, distribution, and storage are not within its traditional expertise. And this Court doubts that “Congress
. . . intended to delegate . . . decision[s] of such economic and political significance,” i.e., how much coal-based generation there should be over the coming decades, to any administrative agency. Brown & Williamson, 529 U. S., at 160. Nor can the Court ignore that the regulatory writ EPA newly uncovered in Section 111(d) conveniently enabled it to enact a program, namely, cap-and-trade for carbon, that Congress had already considered and rejected numerous times. The importance of the policy issue and ongoing debate over its merits “makes the oblique form of the claimed delegation all the more suspect.” Gonzales, 546 U. S., at 267–268. Pp. 20–28.
(c) Given that precedent counsels skepticism toward EPA‘s claim that Section 111 empowers it to devise carbon emissions caps based on a generation shifting approach, the Government must point to “clear congressional authorization” to regulate in that manner. Utility Air, 573 U. S., at 324. The Government can offer only EPA‘s authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction . . . adequately demonstrated.”
Finally, the Court has no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER. It is pertinent to the Court‘s analysis that EPA has acted consistent with such a limitation for four decades. But the only question before the Court is more narrow: whether the “best system of emission reduction” identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act. For the reasons given, the answer is no. Pp. 28–31.
985 F. 3d 914, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 20–1530, 20–1531, 20–1778 and 20–1780
WEST VIRGINIA, ET AL., PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
[June 30, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The Clean Air Act authorizes the Environmental Protection Agency to regulate power plants by setting a “standard of performance” for their emission of certain pollutants into
the air. 84 Stat. 1683,
Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources.
I
A
The Clean Air Act establishes three main regulatory programs to control air pollution from stationary sources such as power plants. Clean Air Amendments of 1970, 84 Stat. 1676,
The NAAQS program addresses air pollutants that “may
reasonably be anticipated to endanger public health or welfare,” and “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources.”
The second major program governing stationary sources is the HAP program. The HAP program primarily targets pollutants, other than those already covered by a NAAQS, that present “a threat of adverse human health effects,” including substances known or anticipated to be “carcinogenic, mutagenic, teratogenic, neurotoxic,” or otherwise “acutely or chronically toxic.”
EPA‘s regulatory role with respect to these toxic pollutants is different in kind from its role in administering the NAAQS program. There, EPA is generally limited to determining the maximum safe amount of covered pollutants in the air. As to each hazardous pollutant, by contrast, the Agency must promulgate emissions standards for both new and existing major sources.
words, EPA must directly require all covered sources to reduce their emissions to a certain level. And it chooses that level by determining the “maximum degree of reduction” it considers “achievable” in practice by using the best existing technologies and methods.
Thus, in the parlance of environmental law, Section 112 directs the Agency to impose ”technology-based standard[s] for hazardous emissions,” Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 485, n. 12 (2004) (emphasis added). This sort of “‘technology-based’ approach focuses upon the control technologies that are available to industrial entities and requires the agency to . . . ensur[e] that regulated firms adopt the appropriate cleanup technology.” T. McGarity, Media-Quality, Technology, and Cost-Benefit Balancing Strategies for Health and Environmental Regulation, 46 Law & Contemp. Prob. 159, 160 (Summer 1983) (McGarity). (Such “technologies” are not limited to literal technology, such as scrubbers; “changes in the design and operation” of the facility, or “in the way that employees perform their tasks,” are also available options. Id., at 163, n. 18.)
The third air pollution control scheme is the New Source Performance Standards program of Section 111.
“reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.”
§7411(a)(1) .
Thus, the statute directs EPA to (1) “determine[],” taking into account various factors, the “best system of emission reduction which . . . has been adequately demonstrated,” (2) ascertain the “degree of emission limitation achievable through the application” of that system, and (3) impose an emissions limit on new stationary sources that “reflects” that amount. Ibid.; see also 80 Fed. Reg. 64538 (2015). Generally speaking, a source may achieve that emissions cap any way it chooses; the key is that its pollution be no more than the amount “achievable through the application of the best system of emission reduction . . . adequately demonstrated,” or the BSER.
Although the thrust of Section 111 focuses on emissions limits for new and modified sources—as its title indicates—the statute also authorizes regulation of certain pollutants from existing sources. Under Section 111(d), once EPA “has set new source standards addressing emissions of a particular pollutant under . . . section 111(b),” 80 Fed. Reg. 64711, it must then address emissions of that same pollutant by existing sources—but only if they are not already regulated under the NAAQS or HAP programs.
Although the States set the actual rules governing existing power plants, EPA itself still retains the primary regulatory role in Section 111(d). The Agency, not the States, decides the amount of pollution
Reflecting the ancillary nature of Section 111(d), EPA has used it only а handful of times since the enactment of the statute in 1970. See 80 Fed. Reg. 64703, and n. 275 (past regulations pertained to “four pollutants from five source categories“). For instance, the Agency has established emissions limits on acid mist from sulfuric acid production, 41 Fed. Reg. 48706 (1976) (identifying “fiber mist eliminator” technology as BSER); sulfide gases released by kraft pulp mills, 44 Fed. Reg. 29829 (1979) (determining BSER to be a combination of scrubbers, incineration, filtration systems, and temperature control); and emissions of various harmful gases from municipal landfills, 61 Fed. Reg. 9907 (1996) (setting BSER as use of a flare to combust the gases). It was thus only a slight overstatement for one of the architects of the 1990 amendments to the Clean Air Act to refer to Section 111(d) as an “obscure, never-used section of the law.” Hearings on S. 300 et al. before the Subcommittee on Environmental Protection of the Senate Committee on Environment and Public Works, 100th Cong., 1st Sess., 13 (1987) (remarks of Sen. Durenberger).
B
Things changed in October 2015, when EPA promulgated
two rules addressing carbon dioxide pollution from power plants—one for new plants under Section 111(b), the other for existing plants under Section 111(d). Both were premised on the Agency‘s earlier finding that carbon dioxide is an “air pollutant” that “may reasonably be anticipated to endanger public health or welfare” by causing climate change. 80 Fed. Reg. 64530. Carbon dioxide is not subject to a NAAQS and has not been listed as a toxic pollutant.
The first rule announced by EPA established federal carbon emissions limits for new power plants of two varieties: fossil-fuel-fired electric steam generating units (mostly coal fired) and natural-gas-fired stationary combustion turbines. Id., at 64512. Following the statutory process set out above, the Agency determined the BSER for the two categories of sources. For steam generating units, for instance, EPA determined that the BSER was a combination of high-efficiency production processes and carbon capture technology. See 80 Fed. Reg. 64512. EPA then set the emissions limit based on the amount of carbon dioxide that a plant would emit with these technologies in place. Id., at 64513.
The second rule was triggered by the first: Because EPA was now regulating carbon dioxide from new coal and gas plants, Section 111(d) required EPA to also address carbon emissions from existing coal and gas plants. See
In that rule, EPA established “final emission guidelines for states to follow in developing plans” to regulate existing power plants within their borders. Id., at 64662. To arrive at the guideline limits, EPA did the same thing it does when imposing federal regulations on new sources: It identified the BSER.
The BSER that the Agency selected for existing coal-fired power plants, however,
“building blocks.” Id., at 64667. The first building block was “heat rate improvements” at coal-fired plants—essentially practices such plants could undertake to burn coal more efficiently. Id., at 64727. But such improvements, EPA stated, would “lead to only small emission reductions,” because coal-fired power plants were already operating near optimum efficiency. Ibid. On the Agency‘s view, “much larger emission reductions [were] needed from [coal-fired plants] to address climate change.” Ibid.
Sо the Agency included two additional building blocks in its BSER, both of which involve what it called “generation shifting from higher-emitting to lower-emitting” producers of electricity. Id., at 64728. Building block two was a shift in electricity production from existing coal-fired power plants to natural-gas-fired plants. Ibid. Because natural gas plants produce “typically less than half as much” carbon dioxide per unit of electricity created as coal-fired plants, the Agency explained, “this generation shift [would] reduce[ ] CO2 emissions.” Ibid. Building block three worked the same way, except that the shift was from both coal- and gas-fired plants to “new low- or zero-carbon generating capacity,” mainly wind and solar. Id., at 64729, 64748. “Most of the CO2 controls” in the rule came from the application of building blocks two and three. Id., at 64728.
The Agency identified three ways in which a regulated plant operator could implement a shift in generation to cleaner sources. Id., at 64731. First, an operator could simply reduce the regulated plant‘s own production of electricity. Second, it could build a new natural gas plant, wind farm, or solar installation, or invest in someone else‘s existing facility and then increase generation there. Ibid. Finally, operators could purchase emission allowances or credits as part of a cap-and-trade regime. Id., at 64731–64732. Under such a scheme, sources that achieve a reduction in their emissions can sell a credit representing the value of that reduction to others, who are able to count it
toward their own applicable emissions caps.
EPA explained that taking any of these steps would implement a sector-wide shift in electricity production from coal to natural gas and renewables. Id., at 64731. Given the integrated nature of the power grid, “adding electricity to the grid from one generator will result in the instantaneous reduction in generation from other generators,” and “reductions in generation from one generator lead to the instantaneous increase in generation” by others. Id., at 64769. So coal plants, whether by reducing their own production, subsidizing an increase in production by cleaner sources, or both, would cause a shift toward wind, solar, and natural gas.
Having decided that the “best system of emission reduction . . . adequately demonstrated” was one that would reduce carbon pollution mostly by moving production to cleaner sources, EPA then set about determining “the degree of emission limitation achievable through the application” of that system.
From these significant projected reductions in generation, EPA developed a series of complex equations to “determine the emission performance rates” that States would be required to implement. 80 Fed. Reg. 64815. The calculations resulted in numerical emissions ceilings so strict that no existing coal plant would have been able to achieve them without engaging in one of the three means of shifting generation described above. Indeed, the emissions limit the Clean Power Plan established for existing power plants was actually stricter than the cap imposed by the simultaneously published standards for new plants. Compare id., at 64742, with id., at 64513.
The point, after all, was to compel the transfer of power generating capacity from existing sources to wind and solar. The White House stated that the Clean Power Plan would “drive a[n] aggressive transformation in the domestic energy industry.” White House Fact Sheet, App. in American Lung Assn. v. EPA, No. 19–1140 etc. (CADC), p. 2076. EPA‘s own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors. EPA, Regulatory Impact Analysis for the Clean Power Plan Final Rule 3-22, 3–30, 3–33, 6–24, 6–25 (2015). The Energy Information Administration reached similar conclusions, projecting that the rule would cause retail electricity prices to remain persistently 10% higher in many States, and would reduce GDP by at least a trillion 2009 dollars by 2040. Dept. of Energy, Analysis of the Impacts of the Clean Power Plan 21, 63-64 (May 2015).
C
These projections were never tested, because the Clean Power Plan never went into effect. The same day that EPA promulgated the rule, dozens of parties (including 27 States) petitioned for review in the D. C. Circuit. After that
court declined to enter a stay of the rule, the challengers sought the same relief from this Court. We granted a stay, preventing the rule from taking effect. West Virginia v. EPA, 577 U. S. 1126 (2016). The Court of Appeals later heard argument on the merits en banc. But before it could issue a decision, there was a change in Presidential administrations. The new administration requested that the litigation be held in abeyance so that EPA could reconsider the Clean Power Plan. The D. C. Circuit obliged, and later dismissed the petitions for review as moot.
EPA eventually repealed the rule in 2019, concluding that the Clean Power Plan had been “in excess of its statutory authority” under Section 111(d). 84 Fed. Reg. 32523 (2019). Specifically, the Agency concluded that generation shifting should not have been considered as part of the BSER. The Agency interpreted Section 111 as “limit[ing] the BSER to those systems that can be put into operation at a building, structure, facility, or installation,” such as “add-on controls” and “inherently lower-emitting processes/practices/designs.” Id., at 32524. It then explained that the Clean Power Plan, rather than setting the standard “based on the application of equipment and practices at the level of an
The Agency determined that “the interpretative question raised” by the Clean Power Plan—“i.e., whether a ‘system of emission reduction’ can consist of generation-shifting measures“—fell under the “major question doctrine.” Id., at 32529. Under that doctrine, EPA explained, courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Ibid. (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (internal quotation marks omitted)). The Agency concluded that the Clean Power Plan was
such a decision, for a number of reasons. Its “generation-shifting scheme was projected to have billions of dollars of impact.” 84 Fed. Reg. 32529. “[N]o section 111 rule of the scores issued ha[d] ever been based on generation shifting.” Ibid. And that novel reading of the statute would empower EPA “to order the wholesale restructuring of any industrial sector” based only on its discretionary assessment of “such factors as ‘cost’ and ‘feasibility.‘” Ibid.
EPA argued that under the major questions doctrine, a clear statement was necessary to conclude that Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.” Ibid. It found none. “Indeed,” it concluded, given the text and structure of the statute, “Congress has directly spoken to this precise question and precluded” the use of measures such as generation shifting. Ibid.
In the same rulemaking, the Agency replaced the Clean Power Plan by promulgating a different Section 111(d) regulation, known as the Affordable Clean Energy (ACE) Rule. Id., at 32532. Based on its view of what measures may permissibly make up the BSER, EPA determined that the best system would be akin to building block one of the Clean Power Plan: a combination of equipment upgrades and operating practices that would improve facilities’ heat rates. Id., at 32522, 32537. The ACE Rule determined that the application of its BSER measures would result in only small reductions in carbon dioxide emissions. Id., at 32561.
D
A number of States and private parties immediately filed petitions for review in the D. C. Circuit, challenging EPA‘s repeal of the Clean Power Plan and its enactment of the replacement ACE Rule. Other States and private entities—including petitioners here West Virginia, North Dakota, Westmoreland Mining Holdings LLC, and The North American Coal Corporation (NACC)—intervened to defend both
actions.
The Court of Appeals consolidated all 12 petitions for review into one case. It then held that EPA‘s “repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act“—namely, that generation shifting cannot be a “system of emission reduction” under Section 111. 985 F. 3d, at 995. To the contrary, the court concluded, the statute could reasonably be read to encompass generation shifting. As part of that analysis, the Court of Appeals concluded that the major questions doctrine did not apply, and thus rejected the need for a clear statement of congressional intent to delegate such power to EPA. Id., at 959–968.
Having found that EPA misunderstood the scope of its authority under the Clean Air Act, the Court vacated the Agency‘s repeal of the Clean Power Plan and remanded to the
The court‘s decision, handed down on January 19, 2021, was quickly followed by another change in Presidential administrations. One month later, EPA moved the Court of Appeals to partially stay the issuance of its mandate as it pertained to the Clean Power Plan. The Agency did so to ensure that the Clean Power Plan would not immediately go back into effect. Respondents’ Motion for a Partial Stay of Issuance of the Mandate in American Lung Assn. v. EPA, No. 19–1140 etc. (CADC), p. 4. EPA believed that such a result would not make sense while it was in the process of considering whether to promulgate a new Section 111(d) rule. Ibid. No party opposed the motion, and the court accordingly stayed its vacatur of the Agency‘s repeal of the Clean Power Plan.
Westmoreland, NACC, and the States defending the repeal of the Clean Power Plan all filed petitions for certiorari. We granted the petitions and consolidated the cases. 595 U. S. ___ (2021).
II
We first consider the Government‘s contention that no petitioner has Article III standing to seek our review.
Although most disputes over standing concern whether a plaintiff has satisfied the requirement when filing suit, “Article III demands that an actual controversy persist throughout all stages of litigation.” Hollingsworth v. Perry, 570 U. S. 693, 705 (2013) (internal quotation marks omitted). The requirement of standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). In considering a litigant‘s standing to appeal, the question is whether it has experienced an injury “fairly traceable to the judgment below.” Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 4) (emphasis added; internal quotation marks omitted). If so, and a “favorable ruling” from the appellate court “would redress [that] injury,” then the appellant has a cognizable Article III stake. Ibid.
Here, it is apparent that at least one group of petitioners—the state petitioners—are injured by the Court of Appeals’ judgment. That judgment vacated “the ACE rule and its embedded repeal of the Clean Power Plan,” 985 F. 3d, at 995 (emphasis added), and accordingly purports to bring the Clean Power Plan back into legal effect. Thus, to the extent the Clean Power Plan harms the States, the D. C. Circuit‘s judgment inflicts the same injury. And there can be “little question” that the rule does injure the States, since they are “the object of ” its requirement that they more stringently regulate power plant emissions within their borders. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992).
The Government counters that “agency and judicial actions” subsequent to the court‘s entry of judgment have “eliminated any . . . possibility” of injury. Brief for Federal
Respondents 16. First, after the decision, EPA informed the Court of Appeals that it does not intend to enforce the Clean Power Plan because it has decided to promulgate a newThat Freudian slip, however, reveals the basic flaw in the Government‘s argument: It is the doctrine of mootness, not standing, that addresses whether “an intervening circumstance [has] deprive[d] the plaintiff of a personal stake in the outcome of the lawsuit.” Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 72 (2013) (internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189–192 (2000). The distinction matters because the Government, not petitioners, bears the burden to establish that a once-live case has become moot. Id., at 189; Adarand Constructors, Inc. v. Slater, 528 U. S. 216, 222 (2000) (per curiam).
That burden is “heavy” where, as here, “[t]he only conceivable basis for a finding of mootness in th[e] case is [the respondent‘s] voluntary conduct.” Friends of the Earth, 528 U. S., at 189. Although the Government briefly argues that the lower court‘s stay of its mandate extinguished the controversy, it cites no authority for that proposition, and it does not make sense: Lower courts frequently stay their mandates when notified that the losing party intends to seek our certiorari review. So the Government‘s mootness argument boils down to its representation that EPA has no intention of enforcing the Clean Power Plan prior to promulgating a new
But “voluntary cessation does not moot a case” unless it is “absolutely clear that the allegedly wrongful behaviorcould not reasonably be expected to recur.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719 (2007). Here the Government “nowhere suggests that if this litigation is resolved in its favor it will not” reimpose emissions limits predicated on generation shifting; indeed, it “vigorously defends” the legality of such an approach. Ibid. We do not dismiss a case as moot in such circumstances. See City of Mesquite v. Aladdin‘s Castle, Inc., 455 U. S. 283, 288–289 (1982). The case thus remains justiciable, and we may turn to the merits.
III
A
In devising emissions limits for power plants, EPA first “determines” the “best system of emission reduction” that—taking into account cost, health, and other factors—it finds “has been adequately demonstrated.”
“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). Where the statute at issue is one that confers
Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate” such a sweeping аnd consequential authority “in so cryptic a fashion.” Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 759 (2021) (per curiam) (slip op., at 3), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the ... spread of” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute‘s language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC‘s claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium after previously having done so. Id., at 762–764 (slip op., at 6–8).
Our decision in Utility Air addressed another question regarding EPA‘s authority—namely, whether EPA could construe the term “air pollutant,” in a specific provision of the Clean Air Act, to cover greenhouse gases. 573 U. S., at 310. Despite its textual plausibility, we noted that the Agency‘s interpretation would have given it permitting authority over millions of small sources, such as hotels and officebuildings, that had never before been subject to such requirements. Id., at 310, 324. We declined to uphold EPA‘s claim of “unheralded” regulatory power over “a significant portion of the American economy.” Id., at 324. In Gonzales v. Oregon, 546 U. S. 243 (2006), we confronted the Attorney General‘s assertion that he could rescind the license of any physician who prescribed a controlled substance for assisted suicide, even in a State where such action was legal. The Attorney General argued that this came within his statutory power to revoke licenses where he found them “inconsistent with the public interest,”
All of these regulatory assertions had a colorable textual basis. And yet, in each case, given the various circumstances, “common sense as to the manner in which Congress [would have been] likely to delegate” such power to the agency at issue, Brown & Williamson, 529 U. S., at 133, made it very unlikely that Congress had actually done so. Extraordinary grants of regulatory authority are rarely accomplished through “modest words,” “vague terms,” or “subtle device[s].” Whitman, 531 U. S., at 468. Nor does Congress typically use oblique or elliptical language to empower an agency to make a “radical or fundamental change” to a statutory scheme. MCI Telecommunications Corp. v.American Telephone & Telegraph Co., 512 U. S. 218, 229 (1994). Agencies have only those powers given to them by Congress, and “enabling legislation” is generally not an “open book to which the agency [may] add pages and change the plot line.” E. Gellhorn & P. Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 1011 (1999). We presume that “Congress intends to make major policy decisions itself, not leave those dеcisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc).
Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.
The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” post, at 13, 15 (opinion of KAGAN, J.). But in what the dissent calls the “key case” in this area, Brown & Williamson, post, at 15, the Court could not have been clearer: “In extraordinary cases ... there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. 529 U. S., at 159. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, 573 U. S., at 324. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clearcongressional authorization,” ibid.—confirms that the approach under the major questions doctrine is distinct.
As for the major questions doctrine “label[],” post, at 13, it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. See Utility Air, 573 U. S., at 324 (citing Brown & Williamson and MCI); King v. Burwell, 576 U. S. 473, 486 (2015) (citing Utility Air, Brown & Williamson, and Gonzales).
Under our precedents, this is a major questions case. In arguing that
Prior to 2015, EPA had always set emissions limits under
The Government quibbles with this description of the history of
This consistent understanding of “system[s] of emission reduction” tracked the seemingly universal view, as stated by EPA in its inaugural
The dissent points to a 1977 amendment to
Indeed, EPA nodded to this history in the Clean Power Plan itself, describing thе sort of “systems of emission reduction” it had always before selected—“efficiency improvements, fuel-switching,” and “add-on controls“—as “more traditional air pollution control measures.” 80 Fed. Reg. 64784. The Agency noted that it had “considered” such measures as potential systems of emission reduction for carbon dioxide,
But, the Agency explained, in order to “control[] CO2 from affected [plants] at levels ... necessary to mitigate the dangers presented by climate change,” it could not base the emissions limit on “measures that improve efficiency at the power plants.”
This view of EPA‘s authority was not only unprecedented; it also effected a “fundamental revision of the statute, changing it from [one sort of] scheme of ... regulation” into an entirely different kind. MCI, 512 U. S., at 231. Under the Agency‘s prior view of
The Government attempts to downplay the magnitude of this “unprecedented power over American industry.” Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion). The amount of generation shifting ordered, it argues, must be “adequately demonstrated” and “best” in light of the statu-tory factors of “cost,” “nonair quality health and environmental impact,” and “energy requirements.”
But this argument does not so much limit the breadth of the Government‘s claimed authority as reveal it. On EPA‘s view of
There is little reason to think Congress assigned such decisions to the Agency. For one thing, as EPA itself admitted when requesting special funding, “Understand[ing] and project[ing] system-wide ... trends in areas such as electricity transmission, distribution, and storage” requires “technical and policy expertise not traditionally needed in EPA regulatory development.” EPA, Fiscal Year 2016: Justification of Appropriation Estimates for the Committee on Appropriations 213 (2015) (emphasis added). “When [an] agency has
We also find it “highly unlikely that Congress would leave” to “agency discretion” the decision of how much coal-based generation there should be over the coming decades. MCI, 512 U. S., at 231; see also Brown & Williamson, 529 U. S., at 160 (“We are confident that Congress could not have intended to delegate a decision of such economic andpolitical significance to an agency in so cryptic a fashion.“). The basic and consequential tradeoffs involved in such a choice are ones that Congress would likely have intended for itself. See W. Eskridge, Interpreting Law: A Primer on How To Read Statutes and the Constitution 288 (2016) (“Even if Congress has delegated an agency general rulemaking or adjudicatory power, judges presume that Congress does not delegate its authority to settle or amend major social and economic policy decisions.“).
Congress certainly has not conferred a like authority upon EPA anywhere else in the Clean Air Act. The last place one would expect to find it is in the previously little-used backwater of
The dissent contends that there is nothing surprising about EPA dictating the optimal mix of energy sources nationwide, since that sort of mandate will reduce air pollution from power plants, which is EPA‘s bread and butter. Post, at 20–22. But that does not follow. Forbidding evictions may slow the spread of disease, but the CDC‘s ordering such a measure certainly “raise[s] an eyebrow.” Post, at 18. We would not expect the Department of Homeland Security to make trade or foreign policy even though doing so could decrease illegal immigration. And no one would consider generation shifting a “tool” in OSHA‘s “toolbox,” post, at 21, even though reducing generation at coal plants would reduce workplace illness and injury from coal dust.
The dissent also cites our decision in American Elec. Power Co. v. Connecticut, 564 U. S. 410 (2011). Post, at 20. The question there, however, was whether Congress wanted district court judges to decide, under unwritten federal nuisance law, “whether and how to regulate carbon-dioxide emissions from powerplants.” 564 U. S., at 426. We answered no, given the existence of
C
Given these circumstances, our precedent counsels skepticism toward EPA‘s claim that
All the Government can offer, however, is the Agency‘s authority to establish emissions caps at a level reflecting “the application of the best system of emission reduction ... adequately demonstrated.”
The Government, echoed by the other respondents, looks to other provisions of the Clean Air Act for support. Itpoints out that the Act elsewhere uses the word “system” or “similar words” to describe cap-and-trade schemes or other sector-wide mechanisms for reducing pollution.
But just because a cap-and-trade “system” can be used to reduce emissions does not mean that it is the kind of “system of emission reduction” referred to in
First, unlike
Second, Congress added the above authorizations for the use of emissions trading programs in 1990, simultaneous with amending
Finally, the Government notes that other parts of the Clean Air Act, past and present, have “explicitly limited the permissible components of a particular ‘system‘” of emission reduction in some regard. Brief for Federal Respondents 32. For instance, a separate section of the statute empowers EPA to require the “degree of reduction achievable through the retrofit application of the best system of continuous emission reduction.”
These arguments, however, concern an interpretive question that is not at issue. We have no occasion to decide whether the statutory phrase “system of emission reduction” refers exclusively to measures that improve the pollution performance of individual sources, such that all other actions are ineligible to qualify as the BSER. To be sure, it is pertinent to our analysis that EPA has acted consistentwith such a limitation for the first four decades of the statute‘s existence. But the only interpretive question before us, and the only one we answer, is more narrow: whether the “best system of emission reduction” identified
Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible “solution to the crisis of the day.” New York v. United States, 505 U. S. 144, 187 (1992). But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in
It is so ordered.
JUSTICE GORSUCH, with whom JUSTICE ALITO joins, concurring.
To resolve today‘s case the Court invokes the major questions doctrine. Under that doctrine‘s terms, administrative agencies must be able to point to “clear congressional authorization” when they claim the power to make decisions of vast “economic and political significance.” Ante, at 17, 19. Like many parallel clear-statement rules in our law, this one operates to protect foundational constitutionalguarantees. I join the Court‘s opinion and write to offer some additional observations about the doctrine on which it rests.
I
A
One of the Judiciary‘s most solemn duties is to ensure that acts of Congress are applied in accordance with the Constitution in the cases that come before us. To help fulfill that duty, courts have developed certain “clear-statement” rules. These rules assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds. In this way, these clear-statement rules help courts “act as faithful agents of the Constitution.” A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 169 (2010) (Barrett).
Consider some examples. The Constitution prohibits Congress from passing laws imposing various types of retroactive liability. See
The Constitution also incorporates the doctrine of sovereign immunity. See, e.g., Hans v. Louisiana, 134 U. S. 1, 12–17 (1890). To enforce that doctrine, courts have consistently held
The major questions doctrine works in much the same way to protect the Constitution‘s separation of powers. Ante, at 19. In Article I, “the People” vested “[a]ll” federal “legislative powers ... in Congress.” Preamble;
It is vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable “ministers.” The Federalist No. 11, p. 85 (C. Rossiter ed. 1961) (A. Hamilton). From time to time, some
have questioned that assessment.1 But by vesting the law-making power in the peoples elected representatives, the Constitution sought to ensure “not only that all power [w]ould be derived from the people,” but also “that those [e]ntrusted with it should be kept in dependence on the people.” Id., No. 37, at 227 (J. Madison). The Constitution, too, placed its trust not in the hands of “a few, but [in] a number of hands,” ibid., so that those who make our laws would better reflect the diversity of the people they represent and have an “immediate dependence on, and an intimate sympathy with, the people.” Id., No. 52, at 327 (J. Madison). Today, some might describe the Constitution as having designed the federal lawmaking process to capture the wisdom of the masses. See P. Hamburger, Is Administrative Law Unlawful? 502-503 (2014).
The difficulty of the design sought to serve other ends too. By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove stable over time. See id., No. 10, at 82-84 (J. Madison). The need for compromise inherent in this design also sought to protect minorities by ensuring that their votes would often decide the fate of proposed legislation-allowing them to wield real power alongside the majority. See id., No. 51, at 322-324 (J. Madison). The difficulty of legislating at the federal level aimed as well to preserve room for lawmaking “by governments more local and more accountable than a distant federal” authority, National Federation of Independent Business v. Sebelius, 567 U. S. 519, 536 (2012) (plurality opinion), and in this way allow States to serve as “laborator[ies]” for “novel social and economic experiments,” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting); see J. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 11 (2018).
Permitting Congress to divest its legislative power to the Executive Branch would “dash [this] whole scheme.” Department of Transportation v. Association of American Railroads, 575 U. S. 43, 61 (2015) (ALITO, J., concurring). Legislation would risk becoming nothing more than the will of the current President, or, worse yet, the will of unelected officials barely responsive to him. See S. Breyer, Making Our Democracy Work: A Judges View 110 (2010) (“[T]he president may not have the time or willingness to review [agency] decisions“). In a world like that, agencies could churn out new laws more or less at whim. Intrusions on liberty would not be difficult and rare, but easy and profuse. See The Federalist No. 47, at 303 (J. Madison); id., No. 62, at 378 (J. Madison). Stability would be lost, with vast numbers of laws сhanging with every new presidential administration. Rather than embody a wide social consensus and input from minority voices, laws would more often bear the support only of the party currently in power. Powerful special interests, which are sometimes “uniquely” able to influence the agendas of administrative agencies, would flourish while others would be left to ever-shifting winds. T. Merrill, Capture Theory and the Courts: 1967-1983, 72 Chi.-Kent L. Rev. 1039, 1043 (1997). Finally, little would remain to stop agencies from moving into areas where state authority has traditionally predominated. See, e.g., Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 173-174 (2001) (SWANC). That would be a particularly ironic outcome, given that so many States have robust nondelegation doctrines designed to ensure democratic accountability in their state lawmaking processes. See R. May, The Nondelegation Doctrine is Alive and Well in the States, The Reg. Rev. (Oct. 15, 2020).
Much as constitutional rules about retroactive legislation and sovereign immunity have their corollary clear-statement rules, Article Is Vesting Clause has its own: the major questions doctrine. See Gundy, 588 U. S., at ___ - ___ (GORSUCH, J., dissenting) (slip op., at 20-21). Some version of this clear-statement rule can be traced to at least 1897, when this Court confronted a case involving the Interstate Commerce Commission, the federal governments “first modern regulatory agency.” S. Dudley, Milestones in the Evolution of the Administrative State 3 (Nov. 2020). The ICC argued that Congress had endowed it with the power to set carriage prices for railroads. See ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 499 (1897). The Court deemed that claimed authority “a power of supreme delicacy and importance,” given the role railroads then played in the Nations life. Id., at 505. Therefore, the Court explained, a special rule applied:
“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.” Ibid. (emphasis added).
With the explosive growth of the administrative state since 1970, the major questions doctrine soon took on special importance.2 In 1980, this Court held it “unreasonable to assume” that Congress gave an agency “unprecedented power[s]” in the “absence of a clear [legislative] mandate.” Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1890) (plurality opinion). In the years that followed, the Court routinely enforced “the nondelegation doctrine” through “the interpretation of statu-
tory texts, and, more particularly, [by] giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” Mistretta v. United States, 488 U. S. 361, 373, n. 7 (1989). In fact, this Court applied the major questions doctrine in “all corners of the administrative state,” whether the issue at hand involved an agencys asserted power to regulate tobacco products, ban drugs used in physician-assisted suicide, extend Clean Air Act regulations to private homes, impose an eviction moratorium, or enforce a vaccine mandate. Ante, at 17; see FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000); Gonzales v. Oregon, 546 U. S. 243, 267 (2006); Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014); Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6); National Federation of Independent Business v. OSHA, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 6).3
The Court has applied thе major questions doctrine for the same reason it has applied other similar clear-statement rules-to ensure that the government does “not inadvertently cross constitutional lines.” Barrett 175. And the constitutional lines at stake here are surely no less important than those this Court has long held sufficient to justify parallel clear-statement rules. At stake is not just a question of retroactive liability or sovereign immunity, but basic questions about self-government, equality, fair notice, federalism, and the separation of powers. See Part I-A, supra. The major questions doctrine seeks to protect against “unintentional, oblique, or otherwise unlikely” intrusions on these interests. NFIB v. OSHA, 595 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 5). The doctrine does so by ensuring that, when agencies seek to resolve major questions, they at least act with clear congressional authorization and do not “exploit some gap, ambiguity, or doubtful expression in Congresss statutes to assume responsibilities far beyond” those the peoples representatives actually conferred on them. Ibid. As the Court aptly summarizes it today, the doctrine addresses “a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Ante, at 20.
II
A
Turning from the doctrines function to its application, it seems to me that our cases supply a good deal of guidance about when an agency action involves a major question for which clear congressional authority is required.
First, this Court has indicated that the doctrine applies when an agency claims the power to resolve a matter of great “political significance,” NFIB v. OSHA, 595 U. S., at ___ (slip op., at 6) (internal quotation marks omitted), or end an “earnest and profound debate across the country,” Gonzales, 546 U. S., at 267-268 (internal quotation marks omitted); see ante, at 17. So, for example, in Gonzales, the Court found that the doctrine applied when the Attorney General issued a regulation that would have effectively banned most forms of physician-assisted suicide even as certain States were considering whether to permit the practice. 546 U. S., at 267. And in NFIB v. OSHA, the Court held the doctrine applied when an agency sought to mandate COVID-19 vaccines nationwide for most workers at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates. 595 U. S., at ___ (slip op., at 5); id., at ___ (GORSUCH, J., concurring) (slip op., at 3). Relatedly, this Court has
Second, this Court has said that an agency must point to clear congressional authorization when it seeks to regulate “a significant portion of the American economy,” ante, at 18 (quoting Utility Air, 573 U. S., at 324), or require “billions of dollars in spending” by private persons or entities, King v. Burwell, 576 U. S. 473, 485 (2015). The Court has held that regulating tobacco products, eliminating rate regulation in the telecommunications industry, subjecting private homes to Clean Air Act restrictions, and suspending local housing laws and regulations can sometimes check this box. See Brown & Williamson, 529 U. S., at 160; MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994) (MCI); Utility Air, 573 U. S., at 324; Alabama Assn. of Realtors, 594 U. S., at ___ (slip op., at 6).
Third, this Court has said that the major questions doctrine may apply when an agency seeks to “intrud[e] into аn area that is the particular domain of state law.” Ibid. Of course, another longstanding clear-statement rule-the federalism canon-also applies in these situations. To preserve the “proper balance between the States and the Federal Government” and enforce limits on Congresss Commerce Clause power, courts must “‘be certain of Congresss intent‘” before finding that it “legislate[d] in areas traditionally regulated by the States.” Gregory v. Ashcroft, 501 U. S. 452, 459-460 (1991). But unsurprisingly, the major questions doctrine and the federalism canon often travel together. When an agency claims the power to regulate vast swaths of American life, it not only risks intruding on Congresss power, it also risks intruding on powers reserved to the States. See SWANC, 531 U. S., at 162, 174.
While this list of triggers may not be exclusive, each of the signs the Court has found significant in the past is present here, making this a relatively easy case for the doctrines application. The EPA claims the power to force coal and gas-fired power plants “to cease [operating] altogether.” Ante, at 24. Whether these plants should be allowed to operate is a question on which people today may disagree, but it is a question everyone can agree is vitally important. See ante, at 24-25. Congress has debated the matter frequently. Ibid.; see generally Climate Change, The History of a Consensus and the Causes of Inaction, Hearing before the Subcommittee on Environment of the House Committee on Oversight and Reform, 116th Cong., 1st Sess., pt. I (2019). And so far it has “conspicuously and repeatedly declined” to adopt legislation similar to the Clean Power
Other suggestive factors are present too. “The electric power sector is among the largest in the U. S. economy, with links to every other sector.” N. Richardson, Keeping Big Cases From Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 388 (2016). The Executive Branch has acknowledged that its proposed rule would force an “aggressive transformation” of the electricity sector through “transition to zero-carbon renewable energy sources.” White House Fact Sheet, App. in American Lung Assn. v. EPA, No. 19-1140 (CADC), pp. 2076-2077. The Executive Branch has also predicted its rule would force dozens of power plants to close and eliminate thousands of jobs by 2025. See EPA, Regulatory Impact Analysis for the Clean Power Plan Final Rule 3-27, 3-30, 3-33, 6-25 (Oct. 23, 2015). And industry analysts have estimated the CPP would cause consumers electricity costs to rise by over $200 billion. See National Mining Assn., EPAs Clean Power Plan: An Economic Impact Analysis 2, 4 (2015). Finally, the CPP unquestionably has an impact on federalism, as “the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.” Arkansas Elec. Cooperative Corp. v. Arkansas Pub. Serv. Commn, 461 U. S. 375, 377 (1983). None of this is to say the policy the agency seeks to pursue is unwise or should not be pursued. It is only to say that the agency seeks to resolve for itself the sort of question normally reserved for Congress. As a result, we look for clear evidence that the peoples representatives in Congress have actually afforded the agency the power it claims.
B
At this point, the question becomes what qualifies as a clear congressional statement authorizing an agencys action. Courts have long experience applying clear-statement rules throughout the law, and our cases have identified several telling clues in this context too.
First, courts must look to the legislative provisions on which the agency seeks to rely “with a view to their place in the overall statutory scheme.” Brown & Williamson, 529 U. S., at 133. “[O]blique or elliptical language” will not supply a clear statement. Ante, at 18; see Spector v. Norwegian Cruise Line Ltd., 545 U. S. 119, 139 (2005) (plurality opinion) (cautioning against reliance on “broad or general language“). Nor may agencies seek to hide “elephants in mouseholes,” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001), or rely on “gap filler” provisions, ante, at 20. So, for example, in MCI this Court rejected the Federal Communication Commissions attempt to eliminate rate regulation for the telecommunications industry based on a “subtle” provision that empowered the FCC to “modify” rates. 512 U. S., at 231. In Brown & Williamson, the Court rejected the
Second, courts may examine the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address. As the Court puts it today, it is unlikely that Congress will make an “[e]xtraordinary gran[t] of regulatory authority” through “vague language” in “‘a long-extant statute.‘” Ante, at 18-20 (quoting Utility Air, 573 U. S., at 324). Recently, too, this Court found a clear statement lacking when OSHA sought to impose a nationwide COVID-19 vaccine mandate based on a statutory provision that was adopted 40 years before the pandemic and that focused on conditions specific to the workplace rather than a problem faced by society at large. See NFIB v. OSHA, 595 U. S., at ___ (GORSUCH, J., concurring) (slip op., at 3). Of course, sometimes old statutes may be written in ways that apply to new and previously unanticipated situations. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). But an agencys attempt to deploy an old statute focused on one problem to solve a new and different problem may also be a warning sign that it is acting without clear congressional authority. See ante, at 18.
Third, courts may examine the agencys past interpretations of the relevant statute. See ante, at 20-21. A “contemporaneous” and long-held Executive Branch interpretation of a statute is entitled to some weight as evidence of the statutes original charge to an agency. United States v. Philbrick, 120 U. S. 52, 59 (1887). Conversely, in NFIB v. OSHA, the Court found it “telling that OSHA, in its half century of existence, ha[d] never before adopted a broad public health regulation” under the statute that the agency sought to invoke as authority for a nationwide vaccine mandate. 595 U. S., at ___ (slip op., at 8); ante, at 18; see also Brown & Williamson, 529 U. S., at 158-159 (noting that for decades the FDA had said it lacked statutory power to regulate cigarettes). As the Court states today, “‘the want of [an] assertion of power by those who presumably would be alert‘” to it is “‘significant in determining whether such power was actually conferred.‘” Ante, at 21. When an agency claims to have found a previously “unheralded power,” its assertion generally warrants “a measure of skepticism.” Utility Air, 573 U. S., at 324.
Fourth, skepticism may be merited when there is a mismatch between an agencys challenged action and its congressionally assigned mission and expertise. ante, at 25. As the Court explains, “[w]hen an agency has no comparative expertise in making certain policy judgments, . . . Congress presumably would not task it with doing so.” Ibid. (internal quotation marks and alterations omitted). So, for example, in Alabama Assn. of Realtors, this Court rejected an attempt by a public health agency to regulate housing. 594 U. S., at ___ (slip op., at 5). And in NFIB v. OSHA, the Court rejected an effort by a workplace safety agency to ordain “broad public health measures” that “f[ell] outside [its] sphere of expertise.” 595 U. S., at ___ (slip op., at 6).5
cial respect. See ante, at 20-22. Finally, there is a “mismatch” between the EPAs expertise over environmental matters and the agencys claim that “Congress implicitly tasked it, and it alone, with balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy.” Ante, at 25. Such a claimed power “requires technical and policy expertise not traditionally needed in [the] EPAs regulatory development.” Ibid. (internal quotation marks omitted). Again, in observing this much, the Court does not purport to pass on the wisdom of the agencys course. It acknowledges only that agency officials have sought to resolve a major policy question without clear legislative authorization to do so.
III
In places, the dissent seems to suggest that we should not be unduly “‘concerned‘” with the Constitutions assignment of the legislative power to Congress. Post, at 29 (opinion of KAGAN, J.). Echoing Woodrow Wilson, the dissent seems to think “a modern Nation” cannot afford such sentiments. Post, at 29-31. But recently, our dissenting colleagues acknowledged that the Constitution assigns “all legislative Powers” to Congress and “bar[s their] further delegation.” Gundy, 588 U. S., at ___ (plurality opinion of KAGAN, J.) (slip op., at 4) (internal quotation marks and alteration omitted). To be sure, in that case we disagreed about the exact nature of the “nondelegation inquiry” courts must employ to vindicate the Constitution. Id., at ___ (slip op., at 5). But like Chief Justice Marshall, we all recognized that the Constitution does impose some limits on the delegation of legislative power. See ibid.; Wayman, 10 Wheat., at 42-43. And while we all agree that administrative agencies have important roles to play in a modern nation, surely none of us wishes to abandon our Republics promise that the people and their representatives should hаve a mean-ingful say in the laws that govern them. Cf. Rucho v. Common Cause, 588 U. S. ___, ___ (2019) (KAGAN, J., dissenting) (slip op., at 7) (“Republican liberty demands not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people” (internal
So what is our real point of disagreement? The dissent next suggests that the Court strays from its commitment to textualism by relying on a clear-statement rule (the major questions doctrine) to resolve todays case. Post, at 28. But our law is full of clear-statement rules and has been since the founding. Our colleagues do not dispute the point. In fact, they have regularly invoked many of these rules.7
If thats not the problem, perhaps the dissent means to suggest that the major questions doctrine does not belong on the list of our clear-statement rules. At times, the dissent appears to dismiss the doctrine as a “get-out-of-text free car[d].” Ibid. The dissent even seems to suggest that the doctrine could threaten “the safety and efficacy of medications” or lead to “the routine adulteration of food.” Post, at 31. But then again, the dissent also acknowledges that the major questions doctrine should “sensibl[y]” apply in at least some situations. Post, at 14-15. The dissent even favorably highlights one application of the doctrine that our colleagues criticized less than a year ago. See post, at 18 (citing Alabama Assn. of Realtors, 594 U. S. ___). And, of course, our colleagues have joined other applications of the major questions doctrine in the past. See, e.g., King, 576 U. S., at 485-486; Gonzales, 546 U. S., at 267-268. Nor does the dissent really seem to dispute that a major question is at stake in this case. As the dissent observes, the agencys challenged action before us concerns one of “the greatest . . . challenge[s] of our time.” Post, at 21. If this case does not
In the end, our disagreement really seems to center on a difference of opinion about whether the statute at issue here clearly authorizes the agency to adopt the CPP. The dissent even complains that I have failed to conduct an exhaustive analysis of the relevant statutory language. See post, at 28, n. 8. But in this concurrence, I have sought to provide some observations about the underlying doctrine on which todays decision rests. On the merits of the case before us, I join the Courts opinion, which comprehensively sets forth why Congress did not clearly authorize the EPA to engage in a “generation shifting approach” to the production of energy in this country. Ante, at 28. In reaching its judgment, the Court hardly professes to “appoin[t] itself” “the decision-maker on climate policy.” Post, at 33. The Court acknowledges only that, under our Constitution, the peoples elected representatives in Congress are the decisionmakers here-and they have not clearly granted the agency the authority it claims for itself. Ante, at 31.
*
When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the peoples representatives. In our Republic, “[i]t is the peculiar province of the legislature to prеscribe general rules for the government of society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Because todays decision helps safeguard that foundational constitutional promise, I am pleased to concur.
JUSTICE KAGAN, with whom JUSTICE BREYER and JUSTICE SOTOMAYOR join, dissenting.
Today, the Court strips the Environmental Protection Agency (EPA) of the power Congress gave it to respond to “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U. S. 497, 505 (2007).
Climate changes causes and dangers are no longer subject to serious doubt. Modern science is “unequivocal that human influence“-in particular, the emission of greenhouse gases like carbon dioxide-“has warmed the atmosphere, ocean and land.” Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical Science Basis: Headline Statements 1 (2021). The Earth is now warmer than at any time “in the history of modern civilization,” with the six warmest years on record all occurring in the last decade. U. S. Global Change Research Program, Fourth National Climate Assessment, Vol. I, p. 10 (2017); Brief for Climate Scientists as Amici Curiae 8. The rise in temperatures brings with it “increases in heat-related deaths,” “coastal inundation and erosion,” “more frequent and intense hurricanes,
Congress charged EPA with addressing those potentially catastrophic harms, including through regulation of fossil-fuel-fired power plants. Section 111 of the Clean Air Act directs EPA to regulate stationary sources of any substance that “causes, or contributes significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.”
To carry out its Section 111 responsibility, EPA issued the Clean Power Plan in 2015. The premise of the Plan-which no one really disputes-was that operational improvements at the individual-plant level would either “lead to only small emission reductions” or would cost far more than a readily available regulatory alternative. 80 Fed. Reg. 64727-64728 (2015). That alternative-which fossil-fuel-fired plants were “already using to reduce their [carbon dioxide] emissions” in “a cost effective manner“-is called generation shifting. Id., at 64728, 64769. As the Court explains, the term refers to ways of shifting electricity generation from higher emitting sources to lower emitting ones-more specifically, from coal-fired to natural-gas-fired sources, and from both to renewable sources like solar and wind. See ante, at 8. A power company (like the many supporting EPA here) might divert its own resources to a cleaner source, or might participate in a cap-and-trade system with other companies to achieve the same emissions reduction goals.
This Court has obstructed EPAs effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts. See Reply Brief for 29 States and State Agencies in No. 15A773, p. 33 (conceding the point). The effect of the Courts order, followed by the Trump administrations repeal of the rule, was that the Clean Power Plan never went into effect. The ensuing years, though, proved the Plans moderation. Market forces alone caused the power
The limits the majority now puts on EPAs authority fly in the face of the statute Congress wrote. The majority says it is simply “not plausible” that Congress enabled EPA to regulate power plants emissions through generation shifting. Ante, at 31. But that is just what Congress did when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants.
KAGAN, J., dissenting
most effective and efficient way to reduce power plants’ carbon dioxide emissions. And no other provision in the Clean Air Act suggests that Congress meant to foreclose EPA from selecting that system; to the contrary, the Plan‘s regulatory approach fits hand-in-glove with the rest of the statute.
The majority‘s decision rests on one claim alone: that generation shifting is just too new and too big а deal for Congress to have authorized it in
I
The
“the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the [EPA] Administrator determines has been adequately demonstrated.”
§7411(a)(1) .
To take that language apart a bit, the provision instructs EPA to decide upon the “best system of emission reduction which . . . has been adequately demonstrated.” The provision tells EPA, in making that determination, to take account of both costs and varied “nonair” impacts (on health, the environment, and the supply of energy). And the provision finally directs EPA to set the particular emissions limit achievable through use of the demonstrated “best system.” Taken as a whole, the section provides regulatory flexibility and discretion. It imposes, to be sure, meaningful constraints: Take into account costs and nonair impacts, and make sure the best system has a proven track record.1 But the core command—go find the best system of emission reduction—gives broad authority to EPA.
If that flexibility is not apparent on the provision‘s face, consider some dictionary definitions—supposedly a staple of this
For generation shifting fits comfortably within the conventional meaning of a “system of emission reduction.” Consider one of the most common mechanisms of generation shifting: the use of a cap-and-trade scheme. Here is how the majority describes cap and trade: “Under such a scheme, sources that receive a reduction in their emissions can sell a credit representing the value of that reduction to others, who are able to count it toward their own applicable emissions caps.” Ante, at 8-9. Does that sound like a “system” to you? It does to me too. And it alsо has to this Court. In the past, we have explained that “[t]his type of ‘cap-and-trade’ system cuts costs while still reducing pollution to target levels.” EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 503, n. 10 (2014) (emphasis added). So what does the majority mean when it says that “[a]s a matter of definitional possibilities, generation shifting can be described as a ‘system‘“? Ante, at 28 (emphasis added; citation and some internal quotation marks omitted). Rarely has a statutory term so clearly applied.
Other statutory provisions confirm the point. The
There is also a flipside point: Congress declined to include in
Statutory history serves only to pile on: It shows thаt Congress has specifically declined to restrict EPA to technology-based controls in its regulation of existing stationary sources. The key moment came in 1977, when Congress amended
The majority breezes past that congressional choice on the ground that today‘s opinion does not resolve whether EPA can regulate in some non-technological ways; instead, the opinion says only that the Clean Power Plan goes too far. See ante, at 30–31. That is a puzzling point. As an initial matter, it recharacterizes what this case has always been about. The Trump administration repealed the Clean Power Plan for one central reason: because (in its view)
“Congress,” this Court has said, “knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.” Arlington v. FCC, 569 U. S. 290, 296 (2013). In
II
The majority thinks not, contending that in “certain extraordinary cases“—of which this is one—courts should start off with “skepticism” that a broad delegation authorizes agency action. Ante, at 19. The majority labels that view the “major questions doctrine,” and claims to find support for it in our caselaw. Ante, at 19–20, 28. But the relevant decisions do normal statutory interpretation: In them, the Court simply insisted that the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense. Using that ordinary method, the decisions struck down agency actions (even though they plausibly fit within a delegation‘s terms) for two principal reasons. First, an agency was operating far outside its traditional lane, so that it had no viable claim of expertise or experience. And second, the action, if allowed, would have conflicted with, or even wreaked havoc on, Congress‘s broader design. In short, the assertion of delegated power was a misfit for both the agency and the statutory scheme. But that is not true here. The Clean Power Plan falls within EPA‘s wheelhouse, and it fits perfectly—as I‘ve just shown—with all the
A
“[T]he words of a statute,” as the majority states, “must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000); see ante, at 16. We do not assess the meaning of a single word, phrase, or provision in isolation; we also consider the overall statutory design. And that is just as true of statutes broadly delegating power to agencies as of any other kind. In deciding on the scope of such a delegation, courts must assess how an agency action claimed to fall within the provision fits with other aspects of a statutory plan.
So too, a court “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate.” Brown & Williamson, 529 U. S., at 133. Assume that a policy decision, like this one, is a matter of significant “economic and political magnitude.” Ibid. We know that Congress delegates such decisions to agencies all the time—and often via broadly framed provisions like
The majority today goes beyond those sensible principles. It announces the arrival
The majority claims it is just following precedent, but that is not so. The Court has never even used the term “major questions doctrine” before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. It has addressed how an agency‘s view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein, about what Congress would have made of the agency‘s view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design.
The key case here is FDA v. Brown & Williamson. There, the Food and Drug Administration (FDA) asserted that its power to regulate “drugs” and “devices” extended to tobacco products. The claim had something to it: FDA has broad authority over “drugs” and drug-delivery “devices,” and the definitions of those terms could be read to encompass nicotine and cigarettes. But the asserted authority “simply [did] not fit” the overall statutory scheme. 529 U. S., at 143. FDA‘s governing statute required the agency to ensure that regulated products were “safe” to be marketed—but there was no making tobacco products safe in the usual sense. Id., at 133–143. So FDA would have had to reinterpret what it meant to be “safe,” or else ban tobacco products altogether. Ibid. Both options, the Court thought, were preposterous. Until the agency action at issue, tobacco products hadn‘t been spoken of in the same breath as pharmaceuticals (FDA‘s paradigmatic regulated product). And Congress had created in several statutes a “distinct regulatory scheme” for tobacco, not involving FDA. Id., at 155–156. So all the evidence was that Congress had never meant for FDA to have any—let alone total—control over the tobacco industry, with its “unique political history.” Id., at 159. Again, there was “simply” a lack of “fit” between the regulation at issue, the agency in question, and the broader statutory scheme. Id., at 143.
The majority‘s effort to find support in Brown & Williamson for its interpretive approach fails. See ante, at 19. It may be helpful here to quote the full sentence that the majority quotes half of. “In extraordinary cases,” the Court stated, “there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” 529 U. S., at 159.
The Court has applied the same kind of analysis in subsequent cases—holding in each that an agency exceeded the scope of a broadly framed delegation when it operated outside the sphere of its expertise, in a way that warped the statutory text or structure. In Gonzales v. Oregon, 546 U. S. 243 (2006), we rejected the Attorney General‘s assertion of authority (under a broad “public interest” standard) to rescind doctors’ registrations for facilitating assisted suicide, even in States where doing so was legal. See id., at 243, 248–249, 261–275. We doubted Congress would have delegated such a “quintessentially medical judgment[]” to “an executive official who lacks medical expertise.” Id., at 266–267. And we pointed to statutory provisions in which Congress—in opposition to the claimed power—had “painstakingly described the Attorney General‘s limited authority” to deregister physicians. Id., at 262.3
Later, in Utility Air Regulatory Group v. EPA, 573 U. S. 302 (2014), the Court relied on similar reasoning to reject EPA‘s efforts to regulate “millions of small” and previously unregulated sources of emissions—“including retail stores, offices, apartment buildings, shopping centers, schools, and churches.” Id., at 328. Key to that decision was the Court‘s view that reading the delegation so expansively would be “inconsistent with” the statute‘s broader “structure and design.” Id., at 321. The Court explained that allowing the agency action to proceed would necessitate the “rewriting” of other “unambiguous statutory terms“—indeed, of “precise numerical thresholds.” Id., at 321, 325–326. (In quoting one cryptic sentence of Utility Air as supporting its new approach, see ante, at 19, the majority ignores the nine preceding pages of analysis of the statute‘s text and context, see 573 U. S., at 315–324.)
And last Term, the Court concluded that the Centers for Disease Control and Prevention
The eyebrow-raise is indeed a consistent presence in these cases, responding to something the Court found anomalous—looked at from Congress‘s point of view—in a particular agency‘s exercise of authority. In each case, the Court thought, the agency had strayed out of its lane, to an area where it had neither expertise nor experience. The Attorney General making healthcare policy, the regulator of pharmaceutical concerns deciding the fate of the tobacco industry, and so on. And in each case, the proof that the agency had roamed too far afield lay in the statutory scheme itself. The agency action collided with other statutory provisions; if the former were allowed, the latter could not mean what they said or could not work as intended. FDA having to declare tobacco “safe” to avoid shutting down an industry; or EPA having literally to change hard numbers contained in the
B
The Court today faces no such singular assertion of agency power. As I have already explained, nothing in the
Start with what this Court has said before on the subject, reflecting Congress‘s view of the matter. About a decade ago, we recognized that Congress had “delegated to EPA” in
And we were right. Consider the Clean Power Plan‘s component parts—let‘s call them the what, who, and how—to see the rule‘s normalcy. The “what” is the subject matter of the Plan: carbon dioxide emissions. This Court has already found that those emissions fall within EPA‘s domain. We said then: “[T]here is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter.” Massachusetts, 549 U. S., at 531. This is not the Attorney General regulating medical care, or even the CDC regulating landlord- tenant relations. It is EPA (that‘s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time. So too, there is nothing special about the Plan‘s “who“: fossil-fuel-fired power plants. In Utility Air, we thought EPA‘s regulation of churches and schools highly unusual. See supra, at 18. But fossil-fuel-fired plants? Those plants pollute—a lot—and so they have long lived under the watchful eye of EPA. That was true even before EPA began regulating carbon dioxide. See Train v. Natural Resources Defense Council, Inc., 421 U. S. 60, 78 (1975).
Finally, the “how” of generation shifting creates no mismatch with EPA‘s expertise. As the Plan noted, generation shifting has a well-established pedigree as a tool for reducing pollution; even putting aside other federal regulation, see infra, at 25–26, both state regulators and power plants themselves have long used it to attain environmental goals. See 80 Fed. Reg. 64664; Brief for Power Company Respondents 47; see also S. Breyer, Regulation and Its Reform 444, n. 1 (1982) (citing literature on the subject from the 1970s). The technique is, so to speak, a tool in the pollution-control toolbox. And that toolbox is the one EPA uses. So that Agency, more than any other, has the desired “comparative expertise.” Ante, at 25. The majority cannot contest that point frontally: It knows that cap and trade and similar mechanisms are an ordinary part of modern environmental regulation. Instead, the majority protests that Congress would not have wanted EPA to “dictat[e],” through generation shifting, the “mix of energy sources nationwide.” Ante, at 26. But that statement reflects a misunderstanding of how the electricity market works. Every regulation of power plants—even the most conventional, facility-specific controls—“dictat[es]” the national energy mix to one or another degree. That result follows because regulations affect costs, and the electrical grid works by taking up energy from low-cost providers before high-cost ones. Consider an example: Suppose EPA requires coal-fired plants to use carbon-capture technology. That action increases those plants’ costs, and automatically (by virtue of the way the grid operates) reduces their share of the electricity market. So EPA is always controlling the mix of energy sources. In that sense (though the
Why, then, be “skeptic[al]” of EPA‘s exercise of authority? Ante, at 28. When there is no misfit, of the kind apparent in our precedents, between the regulation, the agency, and the statutory design? Although the majority offers a flurry of complaints, they come down in the end to this: The Clean Power Plan is a big new thing, issued under a minor statutory provision. See ante, at 20, 24, 26 (labeling the Plan “transformative” and “unprecedented” and calling
As to bigness—well, events have proved the opposite: The Clean Power Plan, we now know, would have had little or no impact. The Trump administration‘s repeal of the Plan created a kind of controlled experiment: The Plan‘s “magnitude” (ante, at 24) could be measured by seeing how far short the industry fell of the Plan‘s nationwide emissions target. Except that turned out to be the wrong question, because the industry didn‘t fall short of the Plan‘s goal; rather, the industry exceeded that target, all on its own. See App. 265 (declaration of EPA official). And it did so mainly through the generation-shifting techniques that the Plan called for. See ibid.; Brief for United States 47. In effect, the Plan predicted market behavior, rather than altered it (as regulations usually do). Cf. Utility Air, 573 U. S., at 321–322 (discussing the “calamitous consequences” of the EPA approach there under review). And that fact has been understood for some years. At the time of the repeal, the Trump administration explained that “there [was] likely to be no difference between a world where the [Clean Power Plan was] implemented and one where it [was] not.” 84 Fed. Reg. 32561.6 It is small wonder, then, that the
The majority thus pivots to the massive consequences generation shifting could produce—but that claim fares just as poorly. On EPA‘s view of its own authority, the majority worries, some future rule might “forc[e] coal plants to ‘shift’ away virtually all of their generation—i.e., to cease making power altogether.” Ante, at 24. But looking at the text of
The majority‘s claim about the Clean Power Plan‘s novelty—the most fleshed-out part of today‘s opinion, see ante, at 20–24—is also exaggerated. As EPA explained when it issued the Clean Power Plan, an earlier
And the mercury rule itself was rooted in precedent. A decade earlier, EPA had determined that States could comply with a
In any event, newness might be perfectly legitimate—even required—from Congress‘s point of view. I do not dispute that an agency‘s longstanding practice may inform a court‘s interpretation of a statute delegating the agency power. See ante, at 20–21. But it is equally true, as Brown & Williamson recognized, that agency practices are “not carved in stone.” 529 U. S., at 156–157 (internal quotation marks omitted). Congress makes broad delegations in part so that agencies can “adapt their rules and policies to the demands of changing circumstances.” Id., at 157. To keep faith with that congressional choice, courts must give agencies “ample latitude” to revisit, rethink, and revise their regulatory approaches. Ibid. So it is here.
And contra the majority, it is that Congress‘s choice which counts, not any later one‘s. The majority says it “cannot ignore” that Congress in recent years has “considered and rejected” cap-and-trade schemes. Ante, at 27–28. But under normal principles of statutory construction, the majority should ignore that fact (just as I should ignore that Congress failed to enact bills barring EPA from implementing the Clean Power Plan). As we have explained time and again, failed legislation “offers a particularly dangerous basis on which to rest an interpretation of an existing law a different and earlier Congress” adopted. Bostock v. Clayton County, 590 U. S. ___, ___ (2020) (slip op., at 20) (internal quotation marks omitted); see Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring in part) (“Arguments based on subsequent legislative history” should “not be taken seriously, not even in a footnote“). Return to Brown & Williamson, which all agree is the key case in this sphere. It disclaimed any reliance on “Congress’ failure” to grant FDA jurisdiction over tobacco. 529 U. S., at 155. Instead, the Court focused on the statutes Congress ”ha[d] enacted,” which created “a distinct regulatory scheme” for tobacco, incompatible with FDA‘s. Ibid. (emphasis added). Here, as I‘ve shown and the majority effectively concedes, there is nothing equivalent. See supra, at 9–12. Search high and low, nothing in current law conflicts with, or otherwise casts doubt on, the Clean Power Plan. That leaves the Court in much the same place it was when deciding Massachusetts v. EPA. Said the Court then: “That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant” when it enacted the
III
Some years ago, I remarked that “[w]e‘re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards.8 Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence. See ante, at 19, 25–26; e.g., ante, at 3–6 (GORSUCH, J., concurring).
The kind of agency delegations at issue here go all the way back to this Nation‘s founding. “[T]he founding era,” scholars
It is not surprising that Congress has always delegated, and continues to do so—including on important policy issues. As this Court has recognized, it is often “unreasonable and impracticable” for Congress to do anything else. American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). In all times, but ever more in “our increasingly complex society,” the Legislature “simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta v. United States, 488 U. S. 361, 372 (1989). Consider just two reasons why.
First, Members of Congress often don‘t know enough—and know they don‘t know enough—to regulate sensibly on an issue. Of course, Members can and do provide overall direction. But then they rely, as all of us rely in our daily lives, on people with greater expertise and experience. Those people are found in agencies. Congress looks to them to make specific judgments about how to achieve its more general objectives. And it does so especially, though by no means exclusively, when an issue has a scientific or technical dimension. Why wouldn‘t Congress instruct EPA to select “the best system of emission reduction,” rather than try to choose that system itself? Congress knows that systems of emission reduction lie not in its own but in EPA‘s “unique expertise.” Martin v. Occupational Safety and Health Review Comm‘n, 499 U. S. 144, 151 (1991).
Second and relatedly, Members of Congress often can‘t know enough—and again, know they can‘t—to keep regulatory schemes working across time. Congress usually can‘t predict the future—can‘t anticipate changing circumstances and the way they will affect varied regulatory techniques. Nor can Congress (realistically) keep track of and respond to fast-flowing developments as they occur. Once again, that is most obviously true when it comes to scientific and technical matters. The “best system of emission reduction” is not today what it was yesterday, and will surely be something different tomorrow. So for this reason too, a rational Congress delegates. It enables an agency to adapt old regulatory approaches to new times, to ensure that a statutory program remains effective. See, e.g., National Federation of Independent Business v. OSHA, 595 U. S. ___ (2022) (BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting) (slip op., at 9) (observing that a statute‘s broad language was meant to ensure that an agency had “the tools needed to confront emerging dangers“).
Over time, the administrative delegations Congress has made have helped to build a modern Nation. Congress wanted fewer workers killed in industrial accidents. It wanted to prevent plane crashes, and reduce the deadliness of car wrecks. It wanted to ensure that consumer products didn‘t catch fire. It wanted to stop the routine adulteration of food and improve the safety and efficacy of medications. And it wanted cleaner air and water. If an American could go back in time, she might be astonished by how much progress has occurred in all those areas. It didn‘t happen through legislation alone. It happened because Congress gave broad-ranging powers to administrative agencies, and those agencies then filled in—rule by rule by rule—Congress‘s policy outlines.
This Court has historically known enough not to get in the way. Maybe the best explanation of why comes from Justice Scalia. See Mistretta, 488 U. S., at 415–416 (dissenting opinion). The context was somewhat different. He was responding to an argument that Congress could not constitutionally delegate broad policymaking authority; here, the Court reads a delegation with unwarranted skepticism, and thereby artificially constrains its scope. But Justice Scalia‘s reasoning remains on point. He started with the inevitability of delegations: “[S]ome judgments involving policy considerations,” he stated, “must be left to [administrative] officers.” Id., at 415. Then he explained why courts should not try to seriously police those delegations, barring—or, I‘ll add, narrowing—some on the ground that they went too far. The scope of delegations, he said, “must be fixed according to common sense and the inherent necessities of the governmental co-ordination. Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the necessities of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political . . . it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.” Id., at 416 (internal quotation marks omitted).
In short, when it comes to delegations, there are good reasons for Congress (within extremely broad limits) to get to call the shots. Congress knows about how government works in ways courts don‘t. More specifically, Congress knows what mix of legislative and administrative action conduces to good policy. Courts should be modest.
Today, the Court is not.