Climate Change, Democracy, and the Major Questions Doctrine

Authors

Joshua Ulan Galperin

Document Type

Symposium

Abstract

(Excerpt)

This brief Essay progresses in four parts. I will first argue that climate change is impacting the Court’s decisionmaking. Next, I will show that the significance of climate change as a modern political issue has caused the Court to downplay the statutory arrangement Congress created in the Clean Air Act. Third, I will suggest that the Court is not genuinely failing to appreciate the design of the Clean Air Act. Instead, the Court is aware of that design and feels the design goes beyond a constitutionally acceptable delegation of legislative power. Confronting the Nondelegation Doctrine head-on, however, would force the Court to take a position at odds with much of its own rhetoric championing Congress’s majoritarian power. I will close by asserting that the Court’s implicit conclusions may be valid: majoritarianism is not inviolable. If the Court wants to articulate that position, however, it must do so deliberately and expressly because the Court’s democratic clout comes from deliberate expression of ideas. Unfortunately, in West Virginia, the Court has taken on more authority, at the expense of Congress, without reasoning through the implications. The nonmajoritarian grounds for that shift have a basis in democratic thought, but only so long as the Court is sufficiently transparent. Moreover, the nonmajoritarian basis tends to support administrative governance with which the Court has recently expressed so much existential concern on majoritarian grounds.