On September 21, 2022, Law360 and TR Daily covered Venable’s webinar hosted by Craig Gilley, Laura Stefani, and Liz Clark Rinehart on the Supreme Court’s invocation of the major questions doctrine to curtail perceived agency overreach on matters of national significance.
According to Law360, the high court's decision in June restricted the U.S. Environmental Protection Agency's power to regulate greenhouse gas emissions from power plants, finding that an EPA rule issued during the Obama administration exceeded its authority under the Clean Air Act. The case likely will have long-lasting and far-reaching implications for all federal agencies, including the Federal Communications Commission (FCC), stated TR Daily.
Stefani said the decision had sparked a major debate about whether the Supreme Court and lower courts will continue to grant the FCC and other agencies the same "leniency to act" regarding implementing rules and regulations not explicitly called for by Congress. "We have an agency that’s using a 20th century statute to try to focus on 21st century technology, and trying to act quickly while doing that," Stefani said. It could take a "decade-plus to see where all this shakes out," Stefani added.
Rinehart said the current Supreme Court had made clear it would "look very skeptically" at any agency decision that tried to stretch its authority beyond that directly stated by Congress. "What the current interpretation punishes is agency creativity," she said.
Attempts by the FCC to revisit imposing net neutrality rules likely would face the major question doctrine issue, Gilley noted. While broadband is a critical part of the economy and society, "the authority that the Commission is given is really vague," he said. Overall, Gilley said "there’s going to be a lot of precedent that’s overturned, skirted, or ignored" because of the current makeup of the Supreme Court justices and circuit court judges.