This Note addresses two questions: how does the major questions doctrine affect the way agency lawyers advise policymaking clients, and how does that advice affect agency statutory interpretation and regulation? I first describe the doctrine and discuss normative theories for the role agency lawyers should play in statutory interpretation. Second, I consider the effects the doctrine had during the rulemaking, litigation, and rescission of the Clean Power Plan (CPP), the first ever federal regulation of power plants’ greenhouse-gas emissions. Finally, I identify four major concerns with the doctrine’s ex ante effects on agency statutory interpretation and regulatory processes. These critiques apply broadly, beyond the CPP.
Agency Lawyers’ Answers to the Major Questions Doctrine,
Yale J. on Reg.
Available at: https://digitalcommons.law.yale.edu/yjreg/vol37/iss2/7