The Major Questions Doctrine And Its Effect As A Limiting Factor For Sweeping Environmental Regulation

Recent developments in the challenge to an executive order from the Biden Administration in Louisiana v. Biden suggest that the “major questions” doctrine may begin to play a large role in the future of environmental law and regulations. While the existence of this doctrine is nothing new, its relevance in the realm of environmental law and the weighing of factors such as those in a “social cost of carbon” calculus is on the rise.

The major questions doctrine works to ensure that agencies do not impose new obligations of vast economic and political significance upon parties and States absent some express delegation of such authority by Congress. In practice, for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, congress must either: (1) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (2)