Do you know the difference between the major-questions doctrine and the no-elephants-in-mouseholes principle? If you ever find yourself litigating against federal agencies, it’s a distinction to know—especially as the major-questions doctrine gains traction in the Supreme Court, including in today’s student-loan forgiveness decision.
One way of distinguishing the two concepts is offered in a D.C. Circuit decision published this past week. The issue in the case was whether EPA followed the law in a new rule governing certain greenhouse gases. The D.C. Circuit struck down the rule as violating the no-elephants principle.
As a reminder, the no-elephants principle comes from an opinion by Justice Scalia in a clean-air case called American Trucking: “Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not, one might say, hide elephants in mouseholes.”
The EPA violated the no-elephants principle from American Trucking, the D.C. Circuit held, because the statute at issue set a formula for phasing down gases. It didn’t say *how* to phase them down; that was explained in “exhaustive instructions” elsewhere. Rather than following those instructions, EPA hid the elephant of the new rule in the mousehole of a formula.
And here’s where the court disavowed the major-questions doctrine:
“To be clear, we do not decide this case under the major-questions doctrine. That doctrine holds that courts expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”
“Instead, we rely on another long-standing rule of interpretation: Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions. Whereas the major-questions doctrine has a constitutional basis — safeguarding the ‘separation of powers’ by ensuring that agencies do not use statutory ambiguities to make decisions vested in our elected representatives — the American Trucking rule rests on a more modest intuition about how we use language. … Ordinary readers of English do not expect provisions setting out math equations to empower an agency to prescribe other fundamental details of a regulatory scheme.”
“Because the EPA’s interpretation … seeks to do just that, it strains against the ordinary use of language. That is an important clue that the EPA advances an implausible reading of the statute.”