The Four Horsemen of the New Separation of Powers: The Environmental Law Implications of West Virginia, Sackett, Loper Bright, and Corner Post
By ERIN RYAN. Full Text.
This Article explores how several of the Supreme Court’s most recent environmental decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—will shift the constitutional balance of power, and how the polity might respond. Under the pretense of safeguarding legislative power, they consolidate judicial power to decide regulatory issues formerly delegated by the legislature to executive agencies. In so doing, the Court weakened specific environmental laws protecting air, water, and fisheries but also regulatory governance more broadly, by rejecting implementing regulations until Congress acts to specifically authorize them. Corner Post v. Federal Reserve furthers the deregulatory project by facilitating challenges to even time-honored regulations on these new grounds. Yet in an era in which Congress can hardly pass a budget, let alone authorize specific agency rules, the functional impact of these decisions is to shift power over environmental and other regulations to the Supreme Court itself.
The decisions have the potential to viscerally weaken the effectiveness of federal environmental law, with similar ramifications for any realm of law that depends on specialized expertise in design, implementation, or enforcement—especially West Virginia’s “major questions doctrine,” which requires express legislative approval of any rule implicating matters of major political or economic importance, and Loper Bright’s rejection of the Court’s forty-year old Chevron doctrine prescribing judicial deference to an agency’s reasonable interpretation of the congressional statute it implements. Eroding the reach of critical statutes like the Clean Air and Water Acts while eviscerating the administrative rulemaking that provides the core infrastructure of federal environmental law in general, these cases represent—if not the Four Horsemen of the Apocalypse—at least four very serious portents of what may follow in the years to come.
While this is an admittedly confusing moment to parse the constitutional separation of powers, it is critical to recognize how these moves by the Supreme Court undermine interbranch checks and balances—even as we turn to the same Court to respond to unprecedented assertions of executive authority by the new President.
Combining scholarly and practical insights, this Article provides a roadmap for thinking about the Four Horsemen academically and responding to them politically. After reviewing the decisions themselves, it assesses their impacts on the constitutional separation of powers both horizontally and vertically. Horizontally, they shift power from agencies to courts, helping to prompt political proposals to curb the Court’s growing power, including legislative reversals of Horsemen decisions, jurisdiction stripping acts, and even a constitutional amendment to end lifetime appointments for Supreme Court justices. Vertically, they shift power toward state and local governance while simultaneously disempowering their ability to effectively pursue their extraterritorial concerns through intergovernmental bargaining, by weakening federal agencies’ flexibility to respond to subnational initiatives.
It then considers ways to push back against the Horsemen model of judicial interpretive supremacy by disaggregating interpretive authority over different constitutional questions, retaining judicial primacy on adjudicating rights and procedural matters while loosening it over certain separation of powers matters. Inspired by theoretical accounts of negotiated federalism and interbranch structural bargaining, it considers analogous possibilities for sharing interpretive authority over separation of powers matters through judicial deference to consensually negotiated exchange not only between state and federal actors but between the political branches of the federal government, constrained by judicial review for core rule-of-law values. Finally, it considers how courts and legal advocates may respond to this changed legal environment in the near and far terms, offering advice for drafters and advocates involved in legislation, regulation, and litigation and considering how the changes wrought by the Four Horsemen may rebound in unexpected directions in the new Trump administration.