ANALYSIS: EPA Under Major Questions Microscope So Far in 2023

The EPA has had more federal court major questions complaints filed against it so far this year than any other agency. Although topics like financial aid have also been targets of the major questions doctrine, environmental regulation has been the primary focus of complaints up to this point.

Environment, Education Lead 2023 YTD

Five of the 10 federal case-initiating complaints filed so far this year directly challenging agency action and raising major questions were filed against the EPA. Two more—one concerning the SEC’s forthcoming climate rule and another about ESG factors in investment—are related to environmental issues as well.

While student loans were featured in three major questions complaints, 2023 to date is the year of environmental challenges. And given that the US Supreme Court’s first adoption of the doctrine by name came in an environmental case last year, that’s not a surprise.

Four of the 10 complaints challenged the EPA’s definition of “waters of the United States,” (WOTUS) which subjects bodies of water to federal regulation. This issue was briefed and argued before the Supreme Court this year in Sackett v. EPA. While major questions came up repeatedly in the briefs in Sackett, the doctrine wasn’t mentioned at oral argument, and it’s still an open question whether the high court will rely on the doctrine in its final opinion.

FDA, SEC Also Major Defendants

Other agencies aren’t immune from major questions challenges, and will likely see more of them. The Food and Drug Administration has faced major questions arguments at the district court and appellate court levels in litigation filings other than complaints, including motions to dismiss or for preliminary injunctions. The SEC may also be an emerging target, especially as its anticipated climate rule approaches.

But for now, the focus is squarely on the EPA. In addition to the complaints discussed above, documents referencing the major questions doctrine showed up in two district court WOTUS cases and in an air pollution appeal in the US Court of Appeals for the Eighth Circuit.

Litigators should expect to see more major questions challenges to environmental regulation, especially if the current challenges find success.

Bloomberg Law subscribers can find related content in our Environment & Energy Report page, US Law Week’s Supreme Court Today newsletter, our Advanced Dockets Search resource, and our Practical Guidance on Using Bloomberg Law Dockets page.

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