Protecting Climate Change Law from a Revived Nondelegation Doctrine

Abstract

In an era of political gridlock, a potential revitalization of the nondelegation doctrine threatens the Environmental Protection Agency’s existing framework for regulating greenhouse gas emissions and addressing the urgent threat of climate change. At its apex, the nondelegation doctrine briefly constrained permissible delegations from the legislature to the executive branch after two Supreme Court decisions in 1935. The doctrine has since weakened under the lenient “intelligible principle” standard. That standard today allows the legislative branch to make broad delegations to administrative arms of the executive branch, which then use technological and bureaucratic expertise to clarify, implement, and enforce statutes. The result is today’s administrative state—the federal government’s answer to the demanding complexities of modern society, the expansive duties of the federal government, and intense political gridlock in the legislature. However, with multiple Supreme Court Justices indicating support for reviving a stricter form of the nondelegation doctrine, many key, broad agency delegations are under threat, including the Clean Air Act’s delegation to the Environmental Protection Agency requiring regulation of greenhouse gas emissions. The urgency of the fight against climate change, combined with the political difficulty in passing new legislation, necessitates careful consideration of what revived nondelegation doctrine may require of legislative tasks assigned to the executive. In this note, I analyze the potential threat and its solutions and conclude that a revived nondelegation doctrine poses a substantial threat to the Clean Air Act’s delegation to the EPA. For this reason, intricate constitutional arguments and carefully crafted legislation may both be necessary to preserve the EPA’s ability to regulate greenhouse gas emissions.