David Doniger is an old friend and a skilled advocate, and his account of the Clean Power Plan litigation is characteristically well written. But having been inside the federal government during this period, I have a somewhat different perspective — one that complicates the narrative that the Supreme Court’s intervention was simply a conservative majority being taken in by inflated industry cost estimates.[1]  Mr. Doniger focused solely on the cost issue, but said nothing about whether the Agency had the authority to promulgate the rule.

The internal dynamics at EPA were more nuanced than this account suggests. From what I recall at the time, the agency under the Obama Administration was more focused on the political appeal and efficacy of rules than on their legal durability. In particular, the early Obama Administration repeatedly failed to conform to the requirements of the Regulation Flexibility Act.[2] This law requires serious consideration of regulatory alternatives that comply with law and minimize small business burdens.

This is not an unusual dynamic: administrations of both parties have historically been more focused on the political appeal and efficacy of rules rather than on their legal durability.  Critics of the Trump Administration today also complain about illegal rules, and even this conservative Supreme Court has been unafraid to strike down illegal determinations.[3]  The impulse to prefer well-crafted public policy to strict adherence to statutory authority is not a new phenomenon, nor is it the exclusive province of any one administration.

Indeed, I think that the Major Questions Doctrine, whatever its questionable legal heritage, may be understood as the Supreme Court pushing back on a pattern of agency statutory overreach that had been building for years. The Biden CDC’s claim that it had authority under public health statutes to impose a nationwide moratorium on landlord evictions is a striking example of an administration substituting arguably sound social policy for legal authority. Similarly, the Biden Education Department asserted that the HEROES Act authorized cancellation of hundreds of billions of dollars in federal student loan obligations, stretching statutory language beyond any reasonable reading. In both cases, as with the Clean Power Plan, the Administration was consciously advancing a rule to achieve a public policy goal, with a high potential, if not the likelihood, of exceeding statutory authority.   

It appears that the Agency’s motivation for promulgating the Clean Power Plan was to achieve its public policy goals in a novel but well-crafted manner, irrespective of whether the underlying regulatory action was within the bounds of the statute. In an interview on HBO’s Real Time with Bill Maher, EPA Administrator Gina McCarthy stated that, by the time courts ruled on the Clean Power Plan, utilities would likely already have made the necessary investments to comply. Internal Supreme Court memoranda later revealed that Chief Justice Roberts cited this concern in warning that, without a stay, the Court’s eventual merits decision could become “a mere postscript.” Whatever one thinks of Chief Justice Roberts’s reliance on industry cost estimates, the majority of the Court was sending a clear institutional message that agencies cannot immunize legally dubious rules from review simply by making compliance a fait accompli before courts can act. Mr. Doniger apparently has overlooked this discussion in the leaked Supreme Court papers.  The shadow docket intervention may have been, at least in part, a direct response to multiple agencies’ continued overreach.

In addition, it is worth noting that six years later in 2022, the Supreme Court invoked the Major Questions Doctrine, and held 6-3 that the Clean Power Plan exceeded EPA’s statutory authority under the Clean Air Act.[4] That subsequent ruling arguably provides a small measure of retrospective validation for the 2016 stay. If the rule was indeed unlawful, as the Court ultimately determined, then the injunctive relief, however improperly granted, was directed at precisely the kind of agency overreach the Major Questions Doctrine is designed to address.

I agree with multiple observers in this Journal that the doctrine rests on shaky doctrinal foundations.  However, it appears to reflect the institutional concern that agencies should not be permitted to claim transformative powers Congress that did not grant.  This point deserves more attention from the Court’s critics.

Indeed, I am almost entirely in agreement with Georgetown Law Professor Steve Vladeck’s remarkable dissection of the Clean Power Plan intervention by the Supreme Court.  He is correct about the improper reliance on facts not in the record, the sloppy application of the standard for granting emergency relief, and the failure to consider the projected injury to the public.

On a separate note, whether the Major Questions Doctrine survives additional future scrutiny, I would speculate that the 2025 Loper Bright decision may make this doctrine largely superfluous.  In each of the Major Questions Doctrine  cases between 2022 and 2023 discussed here, the Loper Bright directive to seek the “best reading” would also have resulted in the same conclusion to reject the agency overreach.\

Kevin Bromberg previously was the  Assistant Chief Counsel for Environmental Policy at the US Small Business Administration Office of Advocacy. He received his J.D. from Georgetown Law.  He retired from Federal service in 2020, and is now the principal at Bromberg Regulatory Strategy, LLC.

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[1] I spent approximately forty years as a staffer within the U.S. Small Business Administration Office of Advocacy.  I retired from federal service in 2020.  My job was to work with the Office of Management and Budget Office of Interagency Affairs (OIRA) and the EPA reviewing and commenting on draft EPA proposals and final rules.  Compliance with the Regulatory Flexibility Act was a key focus of this office.

[2] See, e.g.,  letter to Lisa Jackson, EPA Administrator from Winslow Sargeant, Chief Counsel for Small Business Administration Office of Advocacy, SBAR Panel – Convening of Panel on Petroleum Refinery Sector Risk and Technology Review and NSPS, Augst 4, 2011.

[3] Trump v. Illinois, 607 U.S. ___ (December 23, 2025) — National Guard Federalization; Learning Resources, Inc. v. Trump No. 24-1287, 607 U.S. ___ (Feb. 20, 2026), consolidated with Trump v. V.O.S. Selections, Inc. — IEEPA Tariffs

[4] In a 6-3 decision authored by Chief Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, the Court held that the Clean Power Plan exceeded EPA’s statutory authority under the Clean Air Act, ruling it unlawful. The Court determined that because the Plan dealt with issues of such “economic and political significance,” it required a clear statement of Congressional intent, which the Clean Air Act does not provide. Justice Kagan dissented, joined by Justices Breyer and Sotomayor.