By: Zachary Sarver
I. BACKGROUND
In the wake of Hurricane Ida, President Biden traveled to Louisiana to observe the destruction and took to the bully pulpit, using the devastation to press Congress to approve pending infrastructure bills.[1] “We got [sic] to build back better,” Biden stated, appearing to tout the necessity of the $1.2 trillion infrastructure bill and the inextricably linked $3.5 trillion budget reconciliation package, both of which furtively advance “Green New Deal[2]” provisions.[3] The Democratic Party backed “Green New Deal” aims to eliminate United States (“U.S.”) greenhouse gas (“GHG”) emissions within a decade.[4] On the 2020 presidential campaign trail, then-candidate Biden promised, “We are going to get rid of fossil fuels.”[5] After tut-tutting about fossil fuels on the campaign trail, on January 27, 2021, President Biden took action to counter the “profound climate crisis” and signed Executive Order 14008, which provides that “the Secretary of the Interior shall pause new oil and natural gas leases on public lands or in offshore waters.”[6] These leases are authorized by Congress under the Outer Continental Shelf Lands Act (“OCSLA”), Gulf of Mexico Energy Security Act (“GOMESA”), and the Mineral Leasing Act (“MLA”).[7] The same day the Executive Order was signed, the Department of Interior, Bureau of Land Management published a document stating “HITTING PAUSE ON NEW OIL AND GAS LEASING.”[8] As a result of the pause, Leases 257 and 258 were rescinded to comply with Executive Order 14008.[9] Of particular importance to the state of Louisiana is Lease 257, which covers “Western and Central Planning Areas of the Gulf of Mexico.”[10] Freezing new leasing and drilling permits offshore in the Gulf deprives Louisiana and other states of revenues from initial lease payments, royalties, and rentals.[11]
Rather than aiding to protect against extreme weather events, the reduction immediately decreases oil production, depresses economic activity, and threatens Louisiana’s Coastal Master Plan, the state’s coastal restoration and fortification plan.[12] The Costal Master Plan is based upon $389 million in GOMESA expenditures over three years beginning 2021.[13] In fact, the cancellation of Lease 257 caused an immediate loss of $50 billion earmarked for coastal recovery and restoration used to protect against tropical storms and hurricanes.[14] Therefore, President Biden’s actions to tackle climate change ironically make Louisiana and its coast more susceptible to the dangers to extreme weather events and the effects of climate change.
II. A “Major” Problem
By pausing offshore oil and gas leases, President Biden usurps the legislative authority that provides for Lease 257 to remain in effect pursuant to a five-year schedule.[15] In Federalist 47, Madison stated: “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced as the very definition of tyranny.” In Louisiana v. Biden, recognizing the clear and present danger of executive overreach, the State of Louisiana and twelve other states sued for a preliminary injunction in the United States District Court for the Western District of Louisiana.[16] On June 15, 2021, District Court Judge Doughty ruled that Louisiana and other states had a substantial likelihood of success on the merits of the claim that the agencies, at the direction of President Biden, acted in an arbitrary and capricious manner in violation of the Administrative Procedures Act (“APA”), implemented a substantive rule without noticing comment in violation of the APA, and unreasonably withheld and unreasonably delayed agency required activity in violation in the APA.[17] The District Court issued a nationwide injunction blocking the pause of sale of oil and gas leases, thus granting relief to Louisiana’s energy sector.[18]
The Biden Administration has appealed to the Fifth Circuit.[19] As more litigation on the issue awaits, Louisiana’s economy is temporarily freed from the shackles of the Biden Administration. Considering recent Supreme Court rulings, Louisiana’s chances of winning on the merits as well as the immediate ruling on appeal at the Fifth Circuit are favorable.[20] Ultimately, unless the Biden Administration concedes, which is unlikely, this litigation should progress to the Supreme Court. With that in mind, this article suggests that Louisiana include the Major Questions Doctrine at oral arguments in the Fifth Circuit and the Supreme Court. Additionally, it should be for Congress to determine what is major, not the courts, and thus, incorporating by reference the Congressional Review Act’s (“CRA’s”) “major rule” criteria as a threshold determination at Chevron step one may nudge Congress to act.[21]
A. Major Questions Doctrine Overview
The Supreme Court brought the Major Questions Doctrine to life in MCI Telecommunications Corp. v. American Telephone & Telegraph Co.[22] In MCI, the issue was whether Section 203(b)(2) of the Communications Act gave the Federal Communications Commission (“FCC”) the authority to “modify” any requirement of § 203.[23] Specifically, whether the FCC can make certain required rate filings optional under its modification authority.[24] Because the rate filings were an “essential characteristic of the rate-regulated industry,” the Court stated it would have been “highly unlikely” of Congress [to] leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion.”[25] The Court concluded that the FCC had exceeded its authority to execute the law by eliminating rate filing requirements that were of “enormous importance to the statutory scheme.”[26] Next, in FDA v. Brown & Williamson Tobacco Corp, the Court held that Congress had not given the Food and Drug Administration (FDA) the authority under the Food, Drug, and Cosmetic Act (“FDCA”) to regulate tobacco products as customarily marketed.[27] Just “[a]s in MCI,” the Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.”[28] Additionally, in Utility Air Regulatory Group (“UARG”) v. EPA, the Court indicated that the Environmental Protection Agency (EPA) had “no power to ‘tailor’ legislation to bureaucratic policy goals” and held that the “EPA exceeded its statutory authority when it interpreted the Clean Air Act to require [certain] permitting for stationary sources based on their GHG emissions.”[29] Importantly in UARG, the Court stated:
When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.[30]
Lastly, in King v. Burwell, the Court reiterated the major questions doctrine stating, “questions of deep ‘economic and political significance’” and “central” to a statutory scheme are those important questions that Congress would have expressly assigned to an agency.[31]
At the heart of the Major Questions Doctrine is a function of the Nondelegation Doctrine; a “constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.”[32] The Major Questions Doctrine in practice is a canon of statutory construction that is appended to the Chevron framework’s first step, which leaves it up to courts to determine what qualifies as major, having “economic and political significance.”[33] The Supreme Court has yet to formulate a “bright-line test that distinguishes major rules from ordinary rules” but has indicated relevant factors, including: “the amount of money involved for regulated and affected parties, the overall impact on the economy, the number of people affected, and the degree of congressional and public attention to the issue.”[34]
B. Reseparation of Powers
Were the Court to accept another case to put the Major Questions Doctrine on more solid footing, Louisiana v. Biden, could be “your huckleberry.” In taking a case, however, the Court may not be so much inclined to strengthen the Major Questions Doctrine with a judicially manageable standard. Rather, it could look to place the onus back on Congress to determine what is necessarily major through incorporation by reference the CRA’s definition of “major rule” into the Major Questions Doctrine.[35] Doing so, Congress will in effect have constructively determined what is major and thus reseparated its legislative power from the executive, as the Constitution intended.[36]
As an oversight tool used by Congress to overturn rules issued by federal agencies, the CRA states that an agency’s “major rule” will take effect automatically in sixty days after it is submitted to Congress or published in the Federal Register unless Congress affirmatively disapproves the rule by joint resolution.[37] Incorporating the discrete and categorical thresholds contained in the CRA, the Court could significantly pare down the Chevron two-step framework, thus limiting agency authority to concerns of interstitial matters.[38] Incorporating CRA § 804(2)(A)–(C) into Chevron Step One to determine majorness could assist courts in quickly denying deference for those constitutionally troubling discretionary agency actions. Enmeshing the CRA’s thresholds, which in theory Congress updates regularly, into the Chevron doctrine would, ex-ante, work to encourage Congress to foster a proper solution. Ultimately, the optimal solution would be adopting the Regulations from the Executive in Need of Scrutiny Act (“REINS Act”).[39] The REINS Act would amend the CRA to require that “major rules” satisfy the bicameralism and presentment requirements of the Constitution.[40]
C. Why Executive Order 14008 is Major
In Louisiana v. Biden, the Government contended that DOI’s decision, as directed by Executive Order 14008, to pause new oil and gas leases under MLA or under OCSLA is within its discretion.[41] The court rightly pointed out that the OCSLA directs the Secretary of the DOI to make oil and gas leases in the Gulf of Mexico Outer Continental Shelf and the discretion to stop is not within its authority.[42] Furthermore, it is estimated that the pause will cause economic losses totaling over $670 billion over the next twenty years, including annual job losses of 72,818.[43] Preventing these unnecessary costs was compelling enough to warrant a U.S. District Court to issue a nationwide injunction, thus prohibiting the pause.[44] Importantly, these costs also resemble those “relevant factors” under the “major rules” framework that Judge Brett Kavanaugh identified in a dissent while on the D.C. Circuit.[45]
In 2020, $156 million in revenues were dispersed to Louisiana under GOMESA for oil and gas leases.[46] Because the annual effect of the oil and gas pause would easily exceed $100,000,000, reduce energy supplies thus increasing prices, and have significant negative effects on Louisiana’s economy, the DOI’s implementation of Executive Order 14008 under the thresholds of the current CRA would trigger a major question.[47] Accordingly, courts then only need ask whether the agency is seeing that a duly enacted law is being faithfully executed rather than whether the agency was exercising reasonable discretion.[48]
Conclusion
Interestingly, one might ask, “Why did the President choose to do by executive order what could have been done constitutionally by Congress?” Considering that as of September 2021, the Democrats control the House of Representatives, the Senate, and the Presidency, it seems farcical to attempt to get rid of separation of powers to keep the promise to get rid of fossil fuels.[49] It is now time for the Supreme Court to reign in executive usurpation of legislative power for the sake of Louisiana’s coast and economy, and the United States Constitution.
Footnotes:
[1] Steven Nelson, Biden Tours Louisiana Hurricane Ida damage—Cheat Sheets Ready To Go, NY Post (Sept. 3, 2021), https://nypost.com/2021/09/03/joe-biden-visits-louisiana-to-tour-hurricane-ida-damage/ [https://perma.cc/V3CE-K2CJ].
[2] The Green New Deal is an ambitious plan to combat climate change and was proposed by Democratic Representative Alexandria Ocasio-Cortez. On February 13, 2019, the proposed legislation failed in the United States Senate with a 0-57 vote, with 43 Democrats voting present. See A joint resolution recognizing the duty of the Federal Government to create a Green New Deal S.J.RES.8, 116th Cong. (2019).
[3] IER, Biden’s “Infrastructure” Bill Advances Green New Deal Provisions, American Energy Aliance (Aug. 6, 2021), https://www.americanenergyalliance.org/2021/08/bidens-infrastructure-bill-advances-green-new-deal-provisions/ [https://perma.cc/JW23-7XVU].
[4] Valerie Volcovici, Democrats Float ‘Green New Deal’ To End Fossil Fuel Era, Reuters (Feb. 7, 2019), https://www.reuters.com/article/us-usa-climate-greennewdeal/democrats-float-green-new-deal-to-end-fossil-fuel-era-idUSKCN1PW16I [https://perma.cc/P2LE-GCYH].
[5] John Kartch, Joe Biden: “We Are Going To Get Rid of Fossil Fuels”, Americans for Tax Reform (Feb. 8, 2020), https://www.atr.org/joe-biden-we-are-going-get-rid-fossil-fuels [https://perma.cc/9Q44-XM6H].
[6] Exec. Order No. 14008, 86 Fed. Reg. 7619 (Jan. 27, 2021).
[7] Louisiana v. Biden, No. 2:21-CV-00778, 2021 WL 2446010, at *2 (W.D. La. June 15, 2021), appeal filed, No. 21-30505 (5th Cir. Aug. 17, 2021).
[8] Biden, 2021 WL 2446010, at *16.
[9] Id. at *15.
[10] Id. at *5.
[11] Id. at *6–7
[12] Id.
[13] Id. at *6.
[14] Id.
[15] See U.S. Const. art. I, § 1.
[16] Biden, 2021 WL 2446010, at *1.
[17] Id. at *4.
[18] Id.
[19] Id., appeal docketed, No. 22-30019 (5th Cir. Jan. 12, 2022).
[20] See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., No. 21A244, 2022 WL 120952, at *1–3 (U.S. Jan. 13, 2022) (granting stay of Secretary of Labor’s mandate ordering 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense, which exceeds the Occupational Safety & Health Administration’s statutory authority); Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (finding the Centers for Disease Control exceeded its authority by imposing a nationwide moratorium on evictions due to COVID-19 coronavirus).
[21] [A]ny rule that the Administrator of the Office of Information and Regulatory Affairs [(“OIRA”)] finds has resulted or likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in cost or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the United States-based enterprises to complete with foreign-based enterprises in domestic and export markets. 5 U.S.C. § 804(2)(A)–(C) (2021).
[22] 512 U.S. 218 (1994).
[23] Id. at 224 (quoting 47 U.S.C. § 203 (1988 ed. And Supp. IV).
[24] Id. at 220.
[25] Id. at 231.
[26] Id.
[27] 529 U.S. 120 (2000).
[28] Id. at 160.
[29] Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 325, 333 (2014).
[30] Id. at 324 (2014) (quoting Brown & Williamson, 529 U.S., at 159).
[31] 576 U.S. 473 (2015) (finding there were reasons why the Court should not assume that the existence of ambiguous statutory language was an implicit delegation by Congress).
[32] Gundy v. United States, 139 S. Ct. 2116, 2142, reh’g denied, 140 S. Ct. 579 (2019) (Gorsuch, J., dissenting).
[33] See King v. Burwell, 576 U.S. 473, 474(2015).
[34] United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 422–23 (D.C. Cir. 2017) (Kavanaugh, J., dissenting) (Dissent using “major rules” in lieu of “major questions.”).
[35] See 5 U.S.C. § 804(2)(A)–(C) (2021).
[36] See U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.”).
[37] § 801(a) (2021).
[38] Util. Air Regul. Grp. v. E.P.A., 573 U.S. 302, 342 (2014) (Bryer, J., concurring).
[39] Regulations from the Executive in Need of Scrutiny Act of 2021 S. 68, 117th Cong. (2021).
[40] U.S. Const. art. I, § 7.
[41] Louisiana v. Biden, No. 2:21-CV-00778, 2021 WL 2446010, at *13 (W.D. La. June 15, 2021).
[42] See id.
[43] tsandstrom@ndoil.org, Biden Ban on Public Lands to Cost Economy $670 Billion Over 20 Years, N.D. Petroleum Council (June 4, 2021), https://www.ndoil.org/biden-ban-on-public-lands-to-cost-economy-670-billion-over-20-years/ [https://perma.cc/EC54-2QLJ].
[44] Biden, 2021 WL 2446010, at *22.
[45] United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381, 422–23 (D.C. Cir. 2017) (Kavanaugh, J., dissenting) (Dissent using “major rules” in leiu of “major questions.”).
[46] Biden, 2021 WL 2446010, at *7.
[47] See supra note 21; Biden, 2021 WL 2446010, at *7.
[48] U.S. Const. art. II, § 1; contra Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).
[49] See John Kartch, Joe Biden: “We Are Going To Get Rid of Fossil Fuels”, Americans for Tax Reform (Feb. 8, 2020), https://www.atr.org/joe-biden-we-are-going-get-rid-fossil-fuels [https://perma.cc/HSE3-4T87].