About the non delegation doctrine:
A recent opinion by Justice Brett Kavanaugh could be a sign the Supreme Court will consider the scope of authority Congress delegates to federal agencies.
How much authority should federal agencies have in shaping regulations like the Clean Power Plan, and how much of that work should fall to Congress instead?
Some legal experts say that question could become a focus for the Supreme Court’s conservative majority now that Justice Brett Kavanaugh has signaled interest in reconsidering the scope of agency powers (Greenwire, Nov. 25).
Court watchers say Kavanaugh’s addition to the bench could open the door to a revival of the long-dormant nondelegation doctrine, which prevents Congress from handing off policy decisions to federal agencies.
The return of the doctrine, which the court has not used to scrap an agency rule since 1935, could pose a threat to greenhouse gas regulations, said UCLA law professor Ann Carlson.
“The basic idea is that if Congress hasn’t specifically addressed a question, then for an agency to take up that question and regulate on it — particularly when there has been a relatively large passage of time since Congress spoke — it shouldn’t and can’t do so, at least in expansive ways,” Carlson said.
Litigation over the repeal and replacement of the Clean Power Plan could test conservative interest in bringing the nondelegation doctrine back into play.
Critics of the Obama-era Clean Power Plan have argued that EPA overstepped its authority when it drafted a rule to systematically slash emissions from power plants. Under President Trump, the agency has ushered in the less-stringent Affordable Clean Energy rule and has asked a lower court to find that the 2015 regulation was not allowable under the Clean Air Act (Energywire, Nov. 5).
Although the Supreme Court can only take a small number of cases each term, observers largely anticipate that the justices will eventually weigh in on the issue.
If it does, Kavanaugh last month offered a fresh piece of evidence that the justices may be open to limiting the authority of federal agencies like EPA.