In its landmark West Virginia v. EPA decision, the Supreme Court on Thursday scaled back the powers of the Environmental Protection Agency — and, it would seem, other federal administrative agencies — to implement regulations that extend beyond what Congress specifically directed in its authorizing legislation, in this case the Clean Air Act. The ruling didn’t go as far as throwing out the long-standing deference of courts to federal agencies’ interpretations when it comes to acting under statutory law where there’s any ambiguity — the so-called “Chevron Deference” doctrine. But it does impose a threshold roadblock to the use of the doctrine, based on the “Major Question” doctrine. Yep, we have a duel of the doctrines here. The end result here is to hamstring the EPA and the Biden administration from reinstating emissions-limiting rules similar to the ones the Obama EPA put forth a few years ago in the “Clean Power Plan,” at least not without legislative approval. Most of the oil and gas industry and a lot of the power industry are likely to welcome the check on this particular regulatory authority, and certainly most of the oil and gas industry welcomes some restraint on the EPA in general. However, the broader implications of the ruling could make life more difficult in the near-term for industries like oil and gas that rely on a stable, or at least semi-predictable, regulatory environment for making long-term plans. In today’s RBN blog, we explain what was at stake in this case and what the decision could mean for the oil and gas industry.
In a term stacked high with blockbuster decisions, it’s tough to stand out, but when it comes to a thud-factor, the West Virginia suit against the EPA was right up there. That’s because it gets to the heart of the executive branch of the federal government’s authority to shape regulatory policies. As noted, this was the clash of two doctrines, Chevron Deference and Major Question. What are they? Chevron Deference, established in 1984, pretty much says that if the law empowering an agency doesn’t explicitly say not to do something to meet the goals of the statue, the agency can do it (as opposed to meaning “deference to Chevron, much to Chevron’s chagrin). The Major Question doctrine, established 10 years later in 1994, says that if the issue is a big deal with a lot of economic or social impact, the agency cannot do something that is explicitly authorized under the empowering legislation. The way the Supreme Court sees it, the Major Question doctrine comes first — in essence, if something isn’t seen as big a deal, then the Chevron Doctrine takes over.
The petitioners in the case — West Virginia, and North Dakota, along with two coal companies — asked the court to decide whether a particular provision in the Clean Air Act (CAA), Section 7411(d), which addresses standards of performance for existing stationary sources of air pollution, constitutionally gives blanket authority to the EPA to issue major rules on what kind of generators can run, without any limits on what it can require. Simply put, the petitioners questioned the scope of the EPA’s powers to force changes in generation mix in the name of greenhouse gas reduction.
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About the song
“Limbo Rock” was written by Billy Strange and Kal Mann (under the pseudonym Jan Sheldon). The song was first recorded as an instrumental and released as a single by The Champs (Tequila) in 1961. The first vocal version of the song was recorded by Chubby Checker in 1962. Session guitarist Billy Strange won a $100 bet that he could write a better song in five minutes than what he and a friend were listening to on the radio. Strange won the bet, and the song was “Limbo Rock.”
Chubby Checker’s manager, Kal Mann, heard The Champs’ version and asked Billy Strange if he could put some lyrics to it and have Checker record it. Strange agreed. Several months later Strange thought that BMI had made a mistake when they sent him a check for $63,000. BMI told Strange it was indeed his money from The Champs’ and Chubby Checker’s versions of his song. In the age of dance song records, and buoyed by his previous success with the genre, Checker released “Limbo Rock” as a single in October 1962. It went to #2 on the Billboard Hot 100 singles chart. Checker’s appearance on The Ed Sullivan Show, where he demonstrated the dance while singing the song, helped to bolster its popularity.
“Limbo Rock” appeared as the seventh song on Chubby Checker’s sixth studio album, Limbo Party. Released in October 1962, the album went to #11 on the Billboard Top 200 Albums chart. Two singles were released from the LP.
Chubby Checker (Ernest Evans) is an American rock and roll singer and dancer. He is known for recording and releasing songs that popularized dance styles in the early sixties such as the twist, the pony, and the limbo. He has released 13 studio albums, three compilation albums, and 51 singles. He had a #1 single on the Billboard Dance Music Singles chart in 2008 with “Knock Down the Walls.” At the age of 80, Checker still occasionally performs live.
Comments
In your opinion, what impact do you think that this ruling will have upon the FERC's recent policy statements in PL21-3-000 Consideration of Greenhouse Gas Emissions in Natural Gas Infrastructure Project Review and PL18-1-000 Certification of New Interstate Natural Gas Facilities?