On Saturday morning, a panel of distinguished scholars and practitioners will debate whether the Biden Administration’s broad-based environmental agenda can survive judicial review in light of the Supreme Court’s recent decision in West Virginia v. EPA. The event will be livestreamed beginning at 11 a.m. ET on Saturday, November 12 at this link.

The Biden Administration began with sweeping executive orders on an ambitious environmental policy agenda, directing a “whole of government” approach to climate change and environmental justice. These policies called for all federal agencies to prioritize regulatory action on equity and climate across numerous economic sectors. And they have, pushing out an aggressive economy-transforming regulatory agenda as Congress has remained largely deadlocked on many of the Administration’s priorities. More recently, some of the Administration’s allies have been calling on President Biden to exercise “emergency powers” to address climate change.

At the same time, the Supreme Court started and ended its last term by telling the administrative state that it cannot simply act in place of Congress. Relevant here, in West Virginia v. EPA, the Court rejected EPA’s claim that it had statutory authority under the Clean Air Act to devise emissions caps. The Court adopted the “major questions doctrine” to explain that executive branch agencies cannot rely on general statutory authority to justify particularly sweeping actions. And the Court faces similar considerations of agency authority in a pending challenge to the federal assertions of jurisdiction over private property under the Clean Water Act, with a decision expected by the end of the year.

The panel includes Sean Donahue (counsel for environmental parties in West Virginia v. EPA), Lindsay See (Solicitor General of West Virginia), Lisa Heinzerling (Georgetown Law), and Derrick Morgan (Heritage Foundation).

Moderated by Judge Lawrence Van Dyke (9th Circuit), this panel will explore the consequences of West Virginia v. EPA and other recent Supreme Court decisions for these “whole of government” approaches and what these new limits may mean for future challenges to sweeping environmental regulations on climate and environmental justice, and other efforts to use emergency powers to achieve regulatory goals not otherwise expressly authorized in statute.

This distinguished panel will discuss a range of interesting topics, including:

  • What is the impact of West Virginia v. EPA on the future of environmental law?

  • Is this a watershed separation of powers moment or a more limited cabining of the administrative state?

  • What might West Virginia v. EPA mean for legislative delegation and the unitary executive?

  • Is it too soon to hope that we might return to an era of political policies implemented by ordinary means of winning elections and passing laws?

  • How does every federal agency become a climate and environmental justice regulator within the contours of their statutory mandates?

  • Are these (and related) pressures why so many environmental law cases offer the best opportunities to push back on the administrative state?

The event is sponsored by the Federalist Society’s Environmental & Property Rights Practice Group.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.