The Origins of the Major Questions Doctrine
Document Type
Article
Publication Date
2024
Abstract
In a series of recent decisions culminating in West Virginia v. EPA, the Supreme Court relied on the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Despite employing this specific terminology for the first time, several Justices have argued that the doctrine is simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first, paradigmatic example of this line of cases is the 1980 “benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for benzene. Since last term, the Supreme Court’s major questions doctrine has sparked intense, wide-ranging debates about whether it is rooted in principles of statutory interpretation and constitutional law or instead serves as a cover for the imposition of the Justices’ particular policy preferences. But these debates and the implications of the major questions doctrine cannot be properly understood without examining how and why the Supreme Court first began to aggressively police agency assertions of regulatory authority. To date, legal scholars have not probed the history of the Court’s invocation of the major questions doctrine to invalidate agency rulemakings.
Using internal agency documents, oral histories with government scientists and officials, and the papers of multiple Supreme Court Justices, this article provides the first in-depth study of the Supreme Court’s 1980 benzene case. It argues that the Justices’ misunderstanding of the agency’s scientific evidence and fears of overregulation led them to demand that OSHA use a specific analytical method to demonstrate benzene’s harms in order to avoid a constitutional delegation problem. Yet OSHA had decided not to utilize the method – now called quantitative risk assessment – because of insufficient data. The court instead deferred to industry-funded experts with little or no background in environmental and public health research, who argued that the method could be used and would reveal that the rule saved very few lives. As the paper shows, the Justices’ embrace of quantitative risk assessment contradicted Congress’s clear desire to avoid industry influence over public health research when passing the OSH Act as well as judicial precedent on deferring to agencies working at the frontiers of scientific knowledge.
Rather than upholding separation of powers principles or agency adherence to the text of its authorizing statute, the Supreme Court’s benzene decision is best characterized as a judicial power grab at the expense of both agency expertise and the democratically elected branches of government. The paper concludes by showing how the Supreme Court’s missteps in the benzene case have plagued recent litigation over environmental and public health regulations and provides suggestions for how the courts and agencies can better avoid these problems.
Recommended Citation
Rothschild, Rachel, "The Origins of the Major Questions Doctrine" (2024). Public Law & Legal Theory Working Papers. 63.
https://repository.law.umich.edu/pub_law_archive/63