In the Wake of West Virginia v. EPA: Legislative and Administrative Paths Forward for Science-Driven Regulation

The report argues that the Supreme Court's invocation of the 'major questions doctrine' in West Virginia v. EPA undermines the ability of federal agencies to use scientific expertise to address complex challenges like climate change. It warns that this shift concentrates policymaking power in the judiciary and suggests that Congress should codify Chevron deference and pass the Scientific Integrity Act. For the executive branch, it recommends a strategy of 'flooding the zone' with smaller, more numerous regulations, streamlining OIRA review, and utilizing nonacquiescence to maintain regulatory efficacy.

• The Supreme Court's decision in West Virginia v. EPA introduced a version of the 'major questions doctrine' that prevents agencies from departing substantially from past policy without clear congressional authorization, particularly in cases of 'vast economic and political significance'.
• The report contends that the major questions doctrine risks shifting policymaking authority from the accountable legislative and executive branches to the federal judiciary, which lacks subject-matter expertise and public accountability.
• To counter judicial interference, the report recommends that Congress codify Chevron deference—which requires courts to defer to reasonable agency interpretations of ambiguous statutes—and pass the Scientific Integrity Act to protect government science.
• The report suggests that federal agencies should adopt a 'bold and dynamic' approach by issuing a higher volume of smaller, streamlined rules to avoid the major questions doctrine and overwhelm the judiciary's capacity for review.
• The authors propose that agencies utilize 'nonacquiescence'—the practice of restricting adverse judicial precedents to the specific facts of a case—to continue pursuing policy goals despite unfavorable court rulings.
• The report recommends streamlining or repealing Executive Order 12866 to reduce the influence of the Office of Information and Regulatory Affairs (OIRA), which the authors describe as opaque and fundamentally anti-regulatory.
• To address climate change despite the West Virginia v. EPA ruling, the report suggests a multi-agency strategy targeting five key sectors: transportation (27% of emissions), electricity (25%), industry (24%), commercial and residential (13%), and agriculture (11%).
• Specific agency actions proposed to curb emissions include the BLM reversing oil and gas leasing policies, the USDA prioritizing subsidies for sustainable organic farms, and the DOT replacing diesel trains with clean-source electric trains.

APA

Goodwin, J., Bell, K., Lyle, R., & Rosenberg, A. (2022). In the Wake of West Virginia v. EPA: Legislative and Administrative Paths Forward for Science-Driven Regulation. Union of Concerned Scientists. https://www.ucs.org/sites/default/files/2022-10/In%20the%20Wake%20of%20West%20Virginia%20v%20EPA.pdf

Chicago

Goodwin, James, Kevin Bell, Rachael Lyle, and Andrew Rosenberg. In the Wake of West Virginia v. EPA: Legislative and Administrative Paths Forward for Science-Driven Regulation. Union of Concerned Scientists, 2022. https://www.ucs.org/sites/default/files/2022-10/In%20the%20Wake%20of%20West%20Virginia%20v%20EPA.pdf.

Wikipedia

{{cite report |last1=Goodwin |first1=James |last2=Bell |first2=Kevin |last3=Lyle |first3=Rachael |last4=Rosenberg |first4=Andrew |title=In the Wake of West Virginia v. EPA: Legislative and Administrative Paths Forward for Science-Driven Regulation |publisher=Union of Concerned Scientists |date=October 2022 |url=https://www.ucs.org/sites/default/files/2022-10/In%20the%20Wake%20of%20West%20Virginia%20v%20EPA.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{goodwin2022wake, author = {Goodwin, James and Bell, Kevin and Lyle, Rachael and Rosenberg, Andrew}, title = {{In the Wake of West Virginia v. EPA: Legislative and Administrative Paths Forward for Science-Driven Regulation}}, institution = {Union of Concerned Scientists}, year = {2022}, month = oct, url = {https://www.ucs.org/sites/default/files/2022-10/In%20the%20Wake%20of%20West%20Virginia%20v%20EPA.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }