Supreme Court shot-or-test rule freeze hits agency powers

By Pamela King | 01/14/2022 01:32 PM EST

The Supreme Court’s order yesterday blocking vaccine-or-test requirements for large employers sent a daunting message to environmental lawyers.

The Supreme Court.

The Supreme Court. Francis Chung/E&E News

The Supreme Court’s order yesterday blocking vaccine-or-test requirements for large employers sent a daunting message to environmental lawyers.

Legal observers say the court, which is now dominated by six conservative justices, has signaled its interest in reining in the regulatory authority of federal agencies. And EPA could be next.

“The writing’s definitely on the wall,” said Robert Percival, director at the environmental law program at the University of Maryland.


Yesterday’s decision froze the Biden administration’s mandate that companies with 100 or more employees require staff either to get vaccinated against Covid-19 or wear masks and test weekly to reduce the spread of the virus. The court issued a separate order yesterday allowing a more limited vaccine requirement for certain health care workers.

In a 6-3 unsigned opinion that split the court along ideological lines, the justices said that Congress hadn’t clearly authorized the Occupational Health and Safety Administration to issue a regulation on a matter of such “vast economic and political significance” — an application of a legal theory known as the major questions doctrine.

The same doctrine is at play in an upcoming Supreme Court battle over EPA’s ability to regulate carbon dioxide emissions from existing power plants (Greenwire, Nov. 3, 2021).

After the Supreme Court took the stunning step of granting the EPA case — which focuses on a regulation that does not technically exist — legal observers speculated that the conservative justices were eager to rein in the agency’s authority.

Case Western Reserve University law professor Jonathan Adler said the Supreme Court’s order yesterday on the OSHA rule is just more “bad news” for EPA.

The order “suggests the justices will reject the D.C. Circuit’s expansive interpretation of EPA authority to regulate GHGs from power plants,” Adler tweeted last night.

The case, West Virginia v. EPA, follows a 2-1 ruling last year from the U.S. Court of Appeals for the District of Columbia Circuit that struck down a Trump-era regulation that had gutted the Obama administration’s Clean Power Plan, which set goals for power plants to slash emissions 32 percent from 2005 levels by 2030.

Industry has already exceeded the targets established under the Obama rule, even though the regulation never officially took effect.

After the D.C. Circuit issued its ruling, the Biden administration said it would move forward with a brand-new rule. It still plans to issue a proposed carbon rule by summer, around the same time the Supreme Court is expected to hand down its decision in West Virginia v. EPA.

In a dissenting opinion, however, D.C. Circuit Judge Justin Walker said at the time that the Clean Air Act had not explicitly authorized EPA to set rules — like the Clean Power Plan — that would force power providers to shift from coal to renewable fuel sources.

“Over time, the Supreme Court will further illuminate the nature of major questions and the limits of delegation,” wrote Walker, a Trump appointee.

Who holds the power?

In a concurring opinion accompanying the order on the OSHA rule, Justice Neil Gorsuch led the Supreme Court’s most conservative members in a stinging rebuke of agency powers.

Gorsuch’s opinion, which Justices Clarence Thomas and Samuel Alito joined, said that the power to govern the lives of 84 million Americans — the number of workers that would have been affected by the vaccine-or-test requirement — sits not with OSHA, but with states and Congress.

He then said that even if Congress had given OSHA that authority, it would likely constitute an unlawful delegation of legislative power.

“The question before us is not how to respond to the pandemic, but who holds the power to do so,” Gorsuch wrote.

Republican-led states and coal companies that had urged the Supreme Court to take up the EPA climate case have made similar arguments to the justices about legislative and executive power.

Gorsuch’s concurring opinion “reveals a radical right court at least of those three justices that would take us back to the 1930s when the court was invalidating New Deal legislation,” said Percival of the University of Maryland.

The court’s three liberal justices — Stephen Breyer, Sonia Sotomayor and Elena Kagan — issued a rare joint dissenting opinion yesterday.

“In our view, the Court’s order seriously misapplies the applicable legal standards,” they wrote. “And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers.”

Yesterday’s order put the OSHA rule on ice as a lower court evaluates the merits of challenges against workplace vaccine-or-test requirements. The order indicates that the majority of Supreme Court justices think those challenges are likely to succeed.

Percival said the OSHA rule battle is distinct from the EPA climate case because it deals with a completely different statute, and it involves decisions to receive vaccines, which is a personal and irreversible choice.

But, he said, yesterday’s order is still concerning to anyone who supports federal action on climate change.

“The court knows full well that by saying Congress didn’t give the authority, the regulation is dead,” he said.