The Biden Administration began with executive orders on an environmental policy agenda, directing a “whole of government” approach to climate change and environmental justice. These policies called for all federal agencies to prioritize regulatory action on equity and climate across numerous economic sectors. And they have, pushing out an economy-transforming regulatory agenda as Congress has remained largely deadlocked on most of the Administration’s priorities. More recently, some of the Administration’s allies have been calling on President Biden to exercise “emergency powers” to address climate change.
At the same time, the Supreme Court started and ended its last term by telling the administrative state that it cannot simply act in place of Congress. Relevant here, in West Virginia v. EPA, the Court rejected EPA’s claim that it had statutory authority under the Clean Air Act to devise emissions caps. The Court adopted the “major questions doctrine” to explain that executive branch agencies cannot rely on general statutory authority to justify particularly sweeping actions. And the Court faces similar considerations of agency authority in a pending challenge to the federal assertions of jurisdiction over private property under the Clean Water Act, with a decision expected by the end of the year.
This panel will explore the consequences of West Virginia v. EPA and other recent Supreme Court decisions for these “whole of government” approaches and what these new limits may mean for future challenges to environmental regulations on climate and environmental justice, and other efforts to use emergency powers to achieve regulatory goals not otherwise expressly authorized in statute. A distinguished panel of experts will discuss a range of interesting topics.
Featuring:

Mr. Sean Donahue, Partner, Donahue & Goldberg LLP
Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
Mr. Derrick Morgan, Executive Vice President, The Heritage Foundation
Ms. Lindsay See, Solicitor General, West Virginia
Moderator: Hon. Lawrence VanDyke, U.S. Court of Appeals, Ninth Circuit