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What Does a Case About the EPA Have to Do With Title IX?

West Virginia v. Environmental Protection Agency

No. 20-1530, 2022 WL 2347278 (U.S. June 30, 2022).

By Dan Fotoples, J.D., M.A., Senior Content Developer, TNG and Kim Pacelli, J.D., Ed.M., Partner, TNG

Title IX practitioners are accustomed to thinking that EPA means “education program or activity,” but this time we mean the actual federal agency charged with environmental regulations. West Virginia v. Environmental Protection Agency, decided by the U.S. Supreme Court on June 30, 2022, was – on its face – about several states challenging the Environmental Protection Agency’s authority to establish carbon emission guidelines under its Clean Power Plan regulations. As one of many decisions to come from the blockbuster U.S. Supreme Court term, this decision was very closely watched because of anticipation that the Court would make fundamental statements about the proper boundaries and limits of a federal agency’s ability to regulate. As Title IX scholars know, we are in a very active period of federal regulation under Title IX, and WV v. EPA may therefore affect the regulatory reach of the U.S. Department of Education, too.

The law that has grown up around the power and authority of federal agencies to regulate is called “administrative law” and is notoriously complex, given the breadth, depth, and technical nature of the federal regulatory environment. In WV v. EPA, the Supreme Court struck down the EPA’s carbon emissions regulations by determining that the proposed regulations violated the “major questions” doctrine. The key premise of the “major questions doctrine” is the philosophy that if Congress wanted to give an agency the power to make “decisions of vast economic and political significance,” Congress must indicate so very clearly. Therefore, agency regulations will not be entitled to deference by courts about topics of economic or political significance unless Congress has provided explicit enough guidance to the agency to support its power to regulate. Although the major questions doctrine may make intuitive sense on its face, prior to the WV v. EPA decision, many legal experts debated whether the major questions doctrine is an established part of the law, or even if the standard is workable.

Prior to this term, the courts have applied the major questions doctrine in only a handful of cases each decade and in cases in which federal agencies went far beyond their charge. However, during this most recent term, the Supreme Court applied the major questions doctrine several times. For example, the Supreme Court struck down the Center for Disease Control and Prevention’s (CDC) moratorium on evictions during the pandemic because the CDC could not regulate the landlord-tenant relationship. The court also struck down Occupational Safety and Health Administration’s (OSHA) mandate that large employers require vaccines or testing, holding that OSHA’s authority to set workplace standards did not apply because Covid exposure could occur outside the workplace.

Supreme Court watchers certainly have taken note that the major questions doctrine seems here to stay. Moving forward, the WV v. EPA case signals that the current Supreme Court will push back against federal agencies that it deems to be acting beyond the scope of Congress’s “clear statement” to regulate. As Title IX practitioners, we can anticipate that litigation may test the applicability of the major questions doctrine to Title IX regulations coming from the U.S. Department of Education. If successful, the U.S. Congress would need to speak with much greater specificity about the power and scope of the Department’s regulatory power under Title IX. ATIXA will be continuing to watch the evolution of this doctrine.

Among the questions will be:

  • Whether Congress’ broad grant of authority to HEW (subsequently to ED) to regulate under Title IX is specific enough to pass muster.
  • Whether ED’s own consideration that the impending Title IX regulations do not constitute a “major rule” under the Congressional Review Act would impact on the major questions doctrine, and how.
  • In light of WV v. EPA, will Congress seek to clarify ED’s regulatory authority, pre-emptively, over a variety of statutes, including Title IX?

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