Notice & Comment

This Is How To Rebut Major Questions Arguments, by Max Sarinsky

In a forthcoming law review article, Richard Revesz and I contend that agencies should preemptively rebut challenges under the major questions doctrine by drawing parallels to past agency actions. A recent federal regulation offers a template for this analysis. 

In its pollution standards for new vehicles issued last week, the Environmental Protection Agency extensively responded to claims that the rule triggers the major questions doctrine. EPA’s analysis is comprehensive and well-researched. In fifty preamble pages (starting on page 144 of the prepublication version), EPA details how its new rule is consistent with decades of agency practice and legislative purpose.

Other federal agencies should take note. To better insulate their rules against attacks, they should follow EPA’s thoughtful and thorough approach. 

Issued under the Clean Air Act’s authority to set pollution standards for new motor vehicles, EPA’s regulation reflects the most stringent standards for greenhouse gases and criteria pollutants to date. Though set as technology-neutral performance standards, carmakers are likely to comply by further boosting electric vehicle production. 

The rule will benefit the environment, public health, and drivers. In 2040, for instance, it will save consumers over $40 billion in fuel costs, according to EPA’s projections, while reducing $80 billion in climate damages. Unsurprisingly, the oil industry has opposed the rule. 

Their statutory arguments take various forms, but most start with the premise that EPA cannot consider vehicle electrification as a control technology when assessing the feasibility of its standards. Otherwise, they contend, its standards could transform the auto industry and implicate issues like grid reliability and energy security that lie beyond the agency’s core expertise.

EPA rebuts the industry’s arguments one by one. The agency doesn’t hide from the implications of its rule: it recognizes that the regulation will have significant effects on the vehicle market and beyond. But in a powerful retort, the agency contends that those effects are consistent with the Clean Air Act’s design and prior agency regulations.

EPA begins with the statutory text. It explains how the Clean Air Act’s definition of regulated vehicles includes electric vehicles and its provisions on control technology include electrification. Discussing the statutory scheme, EPA details how excluding electric vehicles from the regulated class would be “unreasonable and unworkable.”

EPA next turns to legislative history, cataloging Congress’s goal from the 1970s to the 2020s to foster “low emission alternatives to the present internal combustion engine.” Quoting from a 1975 D.C. Circuit case, the agency highlights legislative history showing “that Congress expected the Clean Air Amendments to force the industry to broaden the scope of its research— to study new types of engines and new control systems.”

EPA then pivots to past regulatory practice. Analogizing to this rule’s significance and scale, it explains that prior tailpipe standards similarly “drove development of entirely new engine and emission control technologies such as exhaust gas recirculation and catalytic converters, which in turn required a switch to unleaded fuel and the development of massive new infrastructure.” Turning to the rule’s specific effects, EPA highlights that its prior tailpipe standards also considered and promoted electrification.

After pinpointing specific regulatory antecedents, EPA then tackles the argument that electric vehicles implicate infrastructure and energy security concerns beyond the agency’s purview. As the agency explains, “EPA regularly evaluates in its motor vehicle rules” such factors since all vehicle regulations implicate “the highly interconnected and global supply chain for motor vehicles.” 

Nor are the rule’s large compliance costs unprecedented. Comparing cost estimates from prior tailpipe regulations, EPA demonstrates that the rule’s compliance costs “fall within the range of prior rules” and “are small relative to what Congress itself accepted in enacting” the relevant statutory provision. 

Finally, EPA innovatively uses modeling data to re-contextualize the rule’s impacts and respond to opponents’ arguments. Through its modeling, EPA projects the percentage of the total vehicle fleet that will be battery electric in future years, demonstrating that increases in this percentage are far lower than the annual sales percentage increases that opponents emphasize. EPA also finds that manufacturers can feasibly comply with the rule without producing a single additional battery electric vehicle, albeit at a higher cost than under the central compliance pathway.   

EPA’s analysis is impressive for the breadth and depth of antecedents it analyzes. The agency mines legislative and regulatory history. It draws specific parallels to this rule’s regulatory design and general parallels to its economic effects. EPA pauses on key examples and emphasizes broader points with language befitting an appellate brief. In a particularly poignant passage, it states: “Iterative increases to the stringency of an existing program based on new factual developments hardly reflect an unprecedented expansion of agency authority.”

This persuasive rebuttal is especially significant because some of the major questions doctrine’s leading proponents often misapply it. While the Supreme Court outlined a nuanced doctrine that focuses on the history and breadth of the agency authority at issue, many litigants and lower-court judges now falsely assert that the doctrine prevents any economically or politically significant agency activity. Comprehensive rebuttals like EPA’s, which properly situate the major questions doctrine and address it point-by-point, help dispel this caricature. 

EPA’s thorough analysis also offers a critical roadmap for Department of Justice litigators who will soon brief this issue. Other agencies should study EPA’s approach and follow suit.

Max Sarinsky is the regulatory policy director at the Institute for Policy Integrity and an adjunct professor at New York University School of Law.

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