The Impact of West Virginia v. EPA on Challenges to FERC’s Authority under the Major Questions Doctrine

The document argues that FERC's Transmission Rulemaking and Draft Policy Statements do not trigger the major questions doctrine under the West Virginia v. EPA framework because they are not 'unheralded' or 'transformative'. However, it warns that Justice Gorsuch's concurring opinion, which suggests that intrusion into state law domains could trigger the doctrine, has led 17 states to challenge FERC's authority by citing the jurisdictional divide in the Federal Power Act and Natural Gas Act.

• Under the framework established in West Virginia v. EPA, the major questions doctrine is triggered if an agency action is both "unheralded" and represents a "transformative" change in authority, requiring "clear congressional authorization". Based on this analysis, FERC's proposed revisions to Order No. 1000's regional transmission-planning and cost-allocation rules (Transmission Rulemaking) and its updated draft policy statements on certification of new interstate natural gas facilities (Draft Policy Statements) should not trigger the doctrine.
• Justice Gorsuch's concurring opinion in West Virginia v. EPA attempts to expand the major questions doctrine by recasting it as a clear-statement rule and suggesting that an "intru[sion] into an area that is the particular domain of state law" could be a triggering factor. This interpretation has been used by 17 States to argue that FERC's Transmission Rulemaking triggers the doctrine by implicating the jurisdictional divide in the Federal Power Act (FPA).
• The author contends that integrating state interests into the major questions doctrine risks creating uncertainty for FERC's authority and muddying the existing case law that defines the jurisdictional divide between federal and state authority under the Natural Gas Act (NGA) and the Federal Power Act (FPA).

APA

Goodson, D. L. R. (2023). The Impact of West Virginia v. EPA on Challenges to FERC’s Authority under the Major Questions Doctrine. Institute for Policy Integrity. https://policyintegrity.org/publications/detail/the-impact-of-west-virginia-v-epa-on-challenges-to-fercs-authority-under-the-major-questions-doctrine

Chicago

Goodson, Donald L. R. The Impact of West Virginia v. EPA on Challenges to FERC’s Authority under the Major Questions Doctrine. Institute for Policy Integrity, 2023. https://policyintegrity.org/publications/detail/the-impact-of-west-virginia-v-epa-on-challenges-to-fercs-authority-under-the-major-questions-doctrine.

Wikipedia

{{cite report |last1=Goodson |first1=Donald L. R. |title=The Impact of West Virginia v. EPA on Challenges to FERC’s Authority under the Major Questions Doctrine |publisher=Institute for Policy Integrity |date=18 April 2023 |url=https://policyintegrity.org/publications/detail/the-impact-of-west-virginia-v-epa-on-challenges-to-fercs-authority-under-the-major-questions-doctrine |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{goodson2023impact, author = {Goodson, Donald L. R.}, title = {{The Impact of West Virginia v. EPA on Challenges to FERC’s Authority under the Major Questions Doctrine}}, institution = {Institute for Policy Integrity}, year = {2023}, month = apr, url = {https://policyintegrity.org/publications/detail/the-impact-of-west-virginia-v-epa-on-challenges-to-fercs-authority-under-the-major-questions-doctrine}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }