West Virginia v. EPA

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 2
Pages 697–784
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 30, 2022
REBECCA A. WOMELDORF
reporter of decisions
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WEST VIRGINIA et al. v. ENVIRONMENTAL
PROTECTION
AGENCY et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 20–1530. Argued February 28, 2022—Decided June 30, 2022*
In 2015, the Environmental Protection Agency (EPA) promulgated the
Clean Power Plan rule, which addressed carbon dioxide emissions from
existing coal- and natural-gas-fred power plants. For authority, the
Agency cited Section 111 of the Clean Air Act, which, although known
as the New Source Performance Standards program, also authorizes
regulation of certain pollutants from existing sources under Section
111(d). 42 U. S. C. § 7411(d). Prior to the Clean Power Plan, EPA had
used Section 111(d) only a handful of times since its enactment in 1970.
Under that provision, although the States set the actual enforceable
rules governing existing sources (such as power plants), EPA deter-
mines the emissions limit with which they will have to comply. The
Agency derives that limit by determining the “best system of emission
reduction [that] has been adequately demonstrated,” or the BSER, for
the kind of existing source at issue. § 7411(a)(1). The limit then re-
fects the amount of pollution reduction “achievable through the applica-
tion of ” that system. Ibid.
In the Clean Power Plan, EPA determined that the BSER for existing
coal and natural gas plants included three types of measures, which the
Agency called “building blocks.” 80 Fed. Reg. 64667. The frst build-
ing block was “heat rate improvements” at coal-fred plants—essentially
practices such plants could undertake to burn coal more cleanly. Id., at
64727. This sort of source-specifc, effciency-improving measure was
similar in kind to those that EPA had previously identifed as the BSER
in other Section 111 rules.
Building blocks two and three were quite different, as both involved
what EPA called “generation shifting ” at the grid level—i. e., a shift in
electricity production from higher-emitting to lower-emitting producers.
Building block two was a shift in generation from existing coal-fred
*Together with No. 20–1531, North American Coal Corp. v. Environ-
mental Protection Agency et al., No. 20–1778, Westmoreland Mining
Holdings LLC v. Environmental Protection Agency et al., and No. 20–
1780, North Dakota v. Environmental Protection Agency et al., also on
certiorari to the same court.

698 WEST
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power plants, which would make less power, to natural-gas-fred plants,
wh
ich would make more. Ibid. This would reduce carbon dioxide
emissions because natural gas plants produce less carbon dioxide per
unit of electricity generated than coal plants. Building block three
worked like building block two, except that the shift was from both coal
and gas plants to renewables, mostly wind and solar. Id., at 64729,
64748. The Agency explained that, to implement the needed shift in
generation to cleaner sources, an operator could reduce the regulated
plant's own production of electricity, build or invest in a new or existing
natural gas plant, wind farm, or solar installation, or purchase emission
allowances or credits as part of a cap-and-trade regime. Id., at 64731–
64732. Taking any of these steps would implement a sector-wide shift
in electricity production from coal to natural gas and renewables. Id.,
at 64731.
Having decided that the BSER was one that would reduce carbon
pollution mostly by moving production to cleaner sources, EPA then set
about determining “the degree of emission limitation achievable through
the application” of that system. § 7411(a)(1). The Agency recognized
that, in translating the BSER into an operational emissions limit, it
could choose whether to require anything from a little generation shift-
ing to a great deal. It settled on what it regarded as a “reasonable”
amount of shift, which it based on modeling how much more electricity
both natural gas and renewable sources could supply without causing
undue cost increases or reducing the overall power supply. Id., at
64797–64811. The Agency ultimately projected, for instance, that it
would be feasible to have coal provide 27% of national electricity genera-
tion by 2030, down from 38% in 2014. From these projected changes,
EPA determined the applicable emissions performance rates, which
were so strict that no existing coal plant would have been able to
achieve them without engaging in one of the three means of generation
shifting. The Government projected that the rule would impose bil-
lions in compliance costs, raise retail electricity prices, require the re-
tirement of dozens of coal plants, and eliminate tens of thousands of
jobs.
This Court stayed the Clean Power Plan in 2016, preventing the rule
from taking effect. It was later repealed after a change in Presidential
administrations. Specifcally, in 2019, EPA found that the Clean Power
Plan had exceeded the Agency's statutory authority under Section
111(d), which it interpreted to “limit[ ] the BSER to those systems that
can be put into operation at a building, structure, facility, or installa-
tion.” 84 Fed. Reg. 32524. EPA explained that the Clean Power Plan,
rather than setting the standard “based on the application of equipment
and practices at the level of an individual facility,” had instead based it
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on “a shift in the energy generation mix at the grid level,” id., at 32523.
The
Agency determined that the interpretive question raised by the
Clean Power Plan fell under the major questions doctrine. Under that
doctrine, it determined, a clear statement is necessary for a court to
conclude that Congress intended to delegate authority “of this breadth
to regulate a fundamental sector of the economy.” Id., at 32529. It
found none. The Agency replaced the Clean Power Plan by promulgat-
ing a different Section 111(d) regulation, known as the Affordable Clean
Energy (ACE) rule. Id., at 32532. In that rule, EPA determined that
the BSER would be akin to building block one of the Clean Power Plan:
a combination of equipment upgrades and operating practices that
would improve facilities' heat rates. Id., at 32522, 32537.
A number of States and private parties fled petitions for review in
the D. C. Circuit, challenging EPA's repeal of the Clean Power Plan
and its enactment of the replacement ACE rule. The Court of Appeals
consolidated the cases and held that EPA's “repeal of the Clean Power
Plan rested critically on a mistaken reading of the Clean Air Act”—
namely, that generation shifting cannot be a “system of emission reduc-
tion” under Section 111. 985 F. 3d 914, 995. The court vacated the
Agency's repeal of the Clean Power Plan and remanded to the Agency
for further consideration. It also vacated and remanded the ACE rule
for the same reason. The court's decision was followed by another
change in Presidential administrations, and EPA moved the court to
partially stay its mandate as to the Clean Power Plan while the Agency
considered whether to promulgate a new Section 111(d) rule. No party
opposed the motion, and the Court of Appeals agreed to stay its vacatur
of the Agency's repeal of the Clean Power Plan.
Held:
1. This case remains justiciable notwithstanding the Government's
contention that no petitioner has Article III standing, given EPA's
stated intention not to enforce the Clean Power Plan and to instead
engage in new rulemaking. In considering standing to appeal, the
question is whether the appellant has experienced an injury “fairly
traceable to the judgment below.” Food Marketing Institute v. Argus
Leader Media, 588 U. S. –––, –––. If so, and a “favorable ruling ” from
the appellate court “would redress [that] injury,” then the appellant has
a cognizable Article III stake. Ibid. Here, the judgment below va-
cated the ACE rule and its embedded repeal of the Clean Power Plan,
and accordingly purports to bring the Clean Power Plan back into legal
effect. There is little question that the petitioner States are injured,
since the rule requires them to more stringently regulate power plant
emissions within their borders. The Government counters that EPA's

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current posture has mooted the prior dispute. The distinction between
mootness
and standing matters, however, because the Government
bears the burden to establish that a once-live case has become moot.
The Government's argument in this case boils down to its representation
that EPA does not intend to enforce the Clean Power Plan prior to
promulgating a new Section 111(d) rule. But “[v]oluntary cessation
does not moot a case” unless it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Parents
Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S.
701, 719. Here, the Government “nowhere suggests that if this litiga-
tion is resolved in its favor it will not” reimpose emissions limits predi-
cated on generation shifting. Ibid. Pp. 718–720.
2. Congress did not grant EPA in Section 111(d) of the Clean Air Act
the authority to devise emissions caps based on the generation shifting
approach the Agency took in the Clean Power Plan. Pp. 720–735.
(a) In devising emissions limits for power plants, EPA “deter-
mines” the BSER that—taking into account cost, health, and other fac-
tors—it fnds “has been adequately demonstrated,” and then quantifes
“the degree of emission limitation achievable” if that best system were
applied to the covered source. § 7411(a)(1). The issue here is whether
restructuring the Nation's overall mix of electricity generation, to tran-
sition from 38% to 27% coal by 2030, can be the BSER within the mean-
ing of Section 111.
Precedent teaches that there are “extraordinary cases” in which the
“history and the breadth of the authority that [the agency] has as-
serted,” and the “economic and political signifcance” of that assertion,
provide a “reason to hesitate before concluding that Congress” meant
to confer such authority. FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120, 159–160. See, e. g., Alabama Assn. of Realtors v. Depart-
ment of Health and Human Servs., 594 U. S. –––, –––; Utility Air Regu-
latory Group v. EPA, 573 U. S. 302, 324; Gonzales v. Oregon, 546 U. S.
243, 267; National Federation of Independent Business v. OSHA, 595
U. S. 109, 117. Under this body of law, known as the major questions
doctrine, given both separation of powers principles and a practical un-
derstanding of legislative intent, the agency must point to “clear con-
gressional authorization” for the authority it claims. Utility Air, 573
U. S., at 324. Pp. 720–724.
(b) This is a major questions case. EPA claimed to discover an
unheralded power representing a transformative expansion of its regu-
latory authority in the vague language of a long-extant, but rarely used,
statute designed as a gap fller. That discovery allowed it to adopt a
regulatory program that Congress had conspicuously declined to enact
itself. Given these circumstances, there is every reason to “hesitate

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before concluding that Congress” meant to confer on EPA the authority
i
t clai ms under Sec ti on 111(d). Bro w n & Wi ll i am so n, 529 U. S.,
at 159.
Prior to 2015, EPA had always set Section 111 emissions limits based
on the application of measures that would reduce pollution by causing
the regulated source to operate more cleanly, see, e. g., 41 Fed. Reg.
48706—never by looking to a “system” that would reduce pollution sim-
ply by “shifting ” polluting activity “from dirtier to cleaner sources.”
80 Fed. Reg. 64726. The Government quibbles with this history, point-
ing to the 2005 Mercury Rule as one Section 111 rule that it says relied
upon a cap-and-trade mechanism to reduce emissions. See 70 Fed. Reg.
28616. But in that regulation, EPA set the emissions limit—the
“cap”—based on the use of “technologies [that could be] installed and
operational on a nationwide basis” in the relevant timeframe. Id., at
28620–28621. By contrast, and by design, there are no particular con-
trols a coal plant operator can install and operate to attain the emissions
limits established by the Clean Power Plan. Indeed, the Agency nod-
ded to the novelty of its approach when it explained that it was pursuing
a “broader, forward-thinking approach to the design” of Section 111
regulations that would “improve the overall power system,” rather than
the emissions performance of individual sources, by forcing a shift
throughout the power grid from one type of energy source to another.
80 Fed. Reg. 64703 (emphasis added). This view of EPA's authority was
not only unprecedented; it also effected a “fundamental revision of the
statute, changing it from [one sort of] scheme of . . . regulation” into an
entirely different kind. MCI Telecommunications Corp. v. American
Telephone & Telegraph Co., 512 U. S. 218, 231.
The Government attempts to downplay matters, noting that the
Agency must limit the magnitude of generation shift it demands to a
level that will not be “exorbitantly costly” or “threaten the reliability of
the grid.” Brief for Federal Respondents 42. This argument does not
limit the breadth of EPA's claimed authority so much as reveal it: On
EPA's view of Section 111(d), Congress implicitly tasked it, and it alone,
with balancing the many vital considerations of national policy impli-
cated in the basic regulation of how Americans get their energy. There
is little reason to think Congress did so. EPA has admitted that issues
of electricity transmission, distribution, and storage are not within its
traditional expertise. And this Court doubts that “Congress . . . in-
tended to delegate . . . decision[s] of such economic and political signif-
cance,” i. e., how much coal-based generation there should be over the
coming decades, to any administrative agency. Brown & Williamson,
529 U. S., at 160. Nor can the Court ignore that the regulatory writ
EPA newly uncovered in Section 111(d) conveniently enabled it to enact

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a program, namely, cap-and-trade for carbon, that Congress had already
considered
and rejected numerous times. The importance of the policy
issue and ongoing debate over its merits “makes the oblique form of the
claimed delegation all the more suspect.” Gonzales, 546 U. S., at 267–
268. Pp. 724–732.
(c) Given that precedent counsels skepticism toward EPA's claim
that Section 111 empowers it to devise carbon emissions caps based on
a generation shifting approach, the Government must point to “clear
congressional authorization” to regulate in that manner. Utility Air,
573 U. S., at 324. The Government can offer only EPA's authority to
establish emissions caps at a level refecting “the application of the
best system of emission reduction . . . adequately demonstrated.”
§ 7411(a)(1). The word “system” shorn of all context, however, is an
empty vessel. Such a vague statutory grant is not close to the sort of
clear authorization required. The Government points to other provi-
sions of the Clean Air Act—specifcally the Acid Rain and National Am-
bient Air Quality Standards (NAAQS) programs—that use the word
“system” or “similar words” to describe sector-wide mechanisms for re-
ducing pollution. But just because a cap-and-trade “system” can be
used to reduce emissions does not mean that it is the kind of “system of
emission reduction” referred to in Section 111.
Finally, the Court has no occasion to decide whether the statutory
phrase “system of emission reduction” refers exclusively to measures
that improve the pollution performance of individual sources, such that
all other actions are ineligible to qualify as the BSER. It is pertinent
to the Court's analysis that EPA has acted consistent with such a limita-
tion for four decades. But the only question before the Court is more
narrow: whether the “best system of emission reduction” identifed by
EPA in the Clean Power Plan was within the authority granted to the
Agency in Section 111(d) of the Clean Air Act. For the reasons given,
the answer is no. Pp. 732–735.
985 F. 3d 914, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Thomas,
Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J.,
fled a concurring opinion, in which Alito, J., joined, post, p. 735. Kagan,
J., fled a dissenting opinion, in which Breyer and Sotomayor, JJ., joined,
post, p. 753.
Lindsay S. See, Solicitor General of West Virginia, argued
the cause for state petitioners. With her on the briefs for
petitioners in No. 20–1530 were Patrick Morrisey, Attorney
General, Thomas T. Lampman and Caleb A. Seckman, As-
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Counsel
sistant Solicitors General, Steve Marshall, Attorney General
of
Alabama, Treg R. Taylor, Attorney General of Alaska,
Leslie Rutledge, Attorney General of Arkansas, Christopher
M. Carr, Attorney General of Georgia, Theodore E. Rokita,
Attorney General of Indiana, Derek Schmidt, Attorney Gen-
eral of Kansas, Jeff Landry, Attorney General of Louisiana,
Eric S. Schmitt, Attorney General of Missouri, Austin
Knudsen, Attorney General of Montana, Douglas J. Pe-
terson, Attorney General of Nebraska, Dave Yost, Attorney
General of Ohio, Mike Hunter, Attorney General of Okla-
homa, Alan Wilson, Attorney General of South Carolina,
Jason Ravnsborg, Attorney General of South Dakota, Ken
Paxton, Attorney General of Texas, Sean D. Reyes, Attorney
General of Utah, and Bridget Hill, Attorney General of
Wyoming.
Jacob M. Roth argued the cause for private petitioners.
With him on the briefs for petitioner in No. 20–1531 were
Jeffrey R. Johnson, J. Benjamin Aguiñaga, and Charles T.
Wehland.
Solicitor General Prelogar argued the cause for federal
respondents in all cases. With her on the brief were Assist-
ant Attorney General Kim, Deputy Solicitor General Stew-
art, Frederick Liu, Meghan E. Greenfeld, and Stephanie
L. Hogan.
Beth S. Brinkmann argued the cause for power company
respondents in all cases. With her on the brief for respond-
ents were Eric Chung and Kevin Poloncarz.
Mark W. DeLaquil and Andrew M. Grossman fled briefs
for Westmoreland Mining Holdings LLC as petitioner in
No. 20–1778. Wayne Stenehjem, former Attorney General
of North Dakota, Drew H. Wrigley, Attorney General of
North Dakota, Paul M. Seby, Special Assistant Attorney
General, Matthew Sagsveen, Solicitor General, Margaret
Olson, Assistant Attorney General, and Matthew K. Tieslau
fled a brief for the State of North Dakota as petitioner in
No. 20–1780.
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Counsel
Letitia James, Attorney General of New York, fled a brief
for
the State of New York et al. as respondents in all cases.
With her on the brief were Barbara D. Underwood, Solicitor
General, Steven C. Wu, Deputy Solicitor General, Matthew
W. Grieco, Senior Assistant Solicitor General, and Michael J.
Myers, Andrew G. Frank and Brian M. Lusignan, Assistant
Attorneys General, Rob Bonta, Attorney General of Califor-
nia, Phil J. Weiser, Attorney General of Colorado, William
Tong, Attorney General of Connecticut, Kathleen Jennings,
Attorney General of Delaware, Karl A. Racine, Attorney
General of the District of Columbia, Holly T. Shikada, Attor-
ney General of Hawaii, Kwame Raoul, Attorney General of
Illinois, Aaron M. Frey, Attorney General of Maine, Brian
E. Frosh, Attorney General of Maryland, Maura Healey, At-
torney General of Massachusetts, Dana Nessel, Attorney
General of Michigan, Keith Ellison, Attorney General of
Minnesota, Aaron D. Ford, Attorney General of Nevada, An-
drew J. Bruck, Acting Attorney General of New Jersey, Hec-
tor H. Balderas, Attorney General of New Mexico, Joshua
H. Stein, Attorney General of North Carolina, Ellen F. Ro-
senblum, Attorney General of Oregon, Josh Shapiro, Attor-
ney General of Pennsylvania, Peter F. Neronha, Attorney
General of Rhode Island, Thomas J. Donovan, Jr., Attorney
General of Vermont, Robert W. Ferguson, Attorney General
of Washington, Joshua L. Kaul, Attorney General of Wiscon-
sin, Kristin M. Bronson, Michael N. Feuer, Diana P. Cortes,
and Thomas F. Pepe. Sean H. Donahue fled a brief for
Non-Governmental Organizations et al. as respondents in all
cases. With him on the brief were David T. Goldberg,
Vickie L. Patton, David Doniger, Ian Fein, Benjamin Longs-
treth, Joanne Spalding, Andres Restrepo, Ann Brewster
Weeks, James P. Duffy, Jon A. Mueller, Howard Learner,
Jason C. Rylander, Ben Norris, and Gizelle Wray. Elbert
Lin fled a brief for America's Power as respondent in support
of petitioners in all cases. With him on the brief were F. Wil-
liam Brownell and Erica N. Peterson. Tina R. Van Bockern
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Counsel
and Emily C. Schilling fled briefs for Basin Electric Power
Cooperative
as respondent in support of petitioners in all
cases. Misha Tseytlin, Carroll Wade McGuffey III, and
Timothy L. McHugh fled a brief for the National Mining As-
sociation as respondent in support of petitioners in all cases.†
†Briefs of amici curiae urging reversal in all cases were fled for the
America First Policy Institute by C. Boyden Gray, Jonathan Berry, and
Joshua J. Campbell; for the Americans for Prosperity Foundation by Mi-
chael Pepson; for The Buckeye Institute by Jay R. Carson and Robert
Alt; for the Cato Institute et al. by Ilya Shapiro; for the Competitive
Enterprise Institute by Sam Kazman; for the Lignite Energy Council
et al. by Michael J. Nasi; for the Michigan House of Representatives et al.
by H. Christopher Bartolomucci and Riddhi Dasgupta; for the New Civil
Liberties Alliance by Brian Rosner and Richard Samp; for the New Eng-
land Legal Foundation by John Pagliaro and Daniel B. Winslow; for the
Southeastern Legal Foundation et al. by Thomas R. McCarthy and J. Mi-
chael Connolly; for the South Texas Electric Cooperative, Inc., et al. by
Mr. Nasi; and for 91 Members of Congress by Jeffrey S. Beelaert.
Briefs of amici curiae urging reversal in No. 20–1530 were fled for the
Commonwealth of Kentucky et al. by Daniel Cameron, Attorney General
of Kentucky, Matthew F. Kuhn, Solicitor General, Brett R. Nolan, Princi-
pal Deputy Solicitor General, Alexander Y. Magera, Assistant Solicitor
General, and Barry L. Dunn, Deputy Attorney General, and by the Attor-
neys General for their respective States as follows: Mark Brnovich of
Arizona, Lynn Fitch of Mississippi, and John M. Formella of New Hamp-
shire; and for the Landmark Legal Foundation by Michael J. O'Neill, Mat-
thew C. Forys, and Richard P. Hutchison.
Briefs of amici curiae urging affrmance in all cases were fled the
American Thoracic Society et al. by Sara A. Colangelo; for Climate Scien-
tists Michael Oppenheimer et al. by Thomas G. Sprankling and Felicia H.
Ellsworth; for Former Commissioners of the Federal Energy Regulatory
Commission by Stephen E. Roady; for Former Power Industry Executives
by Matthew E. Price; for the National League of Cities et al. by Michael
Burger; for the National Parks Conservation Association by Paul Koster;
for Public Citizen by Scott L. Nelson and Allison M. Zieve; for Thomas C.
Jorling by Theodore E. Lamm, Sean B. Hecht, and Mr. Jorling, pro se; for
Richard L. Revesz by Mr. Revesz, pro se, and Max Sarinsky; and for
192 Members of Congress by Agatha M. Cole, Max E. Rodriguez, Alison
Borochoff-Porte, and Adam Pollock.
Briefs of amici curiae urging affrmance in No. 20–1530 were fled
for Grid Experts Benjamin F. Hobbs et al. by Cara A. Horowitz; and

706 WEST
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Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Cour
t.
The Clean Air Act authorizes the Environmental Protec-
tion Agency to regulate power plants by setting a “standard
of performance” for their emission of certain pollutants into
the air. 84 Stat. 1683, 42 U. S. C. § 7411(a)(1). That stand-
ard may be different for new and existing plants, but in each
case it must refect the “best system of emission reduction”
that the Agency has determined to be “adequately demon-
strated” for the particular category. §§ 7411(a)(1), (b)(1), (d).
For existing plants, the States then implement that require-
ment by issuing rules restricting emissions from sources
within their borders.
Since passage of the Act 50 years ago, EPA has exercised
this authority by setting performance standards based on
measures that would reduce pollution by causing plants to
operate more cleanly. In 2015, however, EPA issued a new
rule concluding that the “best system of emission reduction”
for existing coal-fred power plants included a requirement
that such facilities reduce their own production of electricity,
or subsidize increased generation by natural gas, wind, or
solar sources.
The question before us is whether this broader conception
of EPA's authority is within the power granted to it by the
Clean Air Act.
for Sen. Sheldon Whitehouse et al. by Erwin Chemerinsky.
Briefs of amici curiae were fled in all cases for Apple Inc. et al. by
Lisa S. Blatt and Matthew B. Nicholson; for the Claremont Institute's
Center for Constitutional Jurisprudence by John C. Eastman and An-
thony T. Caso; for the Edison Electric Institute et al. by Thomas A. Loren-
zen and Elizabeth B. Dawson; and for Scholars of Congressional Account-
ability by Ruth Greenwood and Theresa J. Lee.
Briefs of amici curiae were fled in No. 20–1530 for Doctors for Dis-
aster Preparedness et al. by Andrew L. Schlafy; and for Julian Davis
Mortenson by Elizabeth B. Wydra, Brianne J. Gorod, and Brian R.
Frazelle.
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Opinion of the Court
I
A
The
Clean Air Act establishes three main regulatory pro-
grams to control air pollution from stationary sources such
as power plants. Clean Air Amendments of 1970, 84 Stat.
1676, 42 U. S. C. § 7401 et seq. One program is the New
Source Performance Standards program of Section 111, at
issue here. The other two are the National Ambient Air
Quality Standards (NAAQS) program, set out in Sections
108 through 110 of the Act, 42 U. S. C. §§ 7408–7410, and the
Hazardous Air Pollutants (HAP) program, set out in Section
112, § 7412. To understand the place and function of Section
111 in the statutory scheme, some background on the other
two programs is in order.
The NAAQS program addresses air pollutants that “may
reasonably be anticipated to endanger public health or wel-
fare,” and “the presence of which in the ambient air results
from numerous or diverse mobile or stationary sources.”
§ 7408(a)(1). After identifying such pollutants, EPA estab-
lishes a NAAQS for each. The NAAQS represents “the
maximum airborne concentration of [the] pollutant that the
public health can tolerate.” Whitman v. American Truck-
ing Assns., Inc., 531 U. S. 457, 465 (2001); see § 7409(b).
EPA, though, does not choose which sources must reduce
their pollution and by how much to meet the ambient pollu-
tion target. Instead, Section 110 of the Act leaves that task
in the frst instance to the States, requiring each “to submit
to [EPA] a plan designed to implement and maintain such
standards within its boundaries.” Train v. Natural Re-
sources Defense Council, Inc., 421 U. S. 60, 65 (1975); § 7410.
The second major program governing stationary sources
is the HAP program. The HAP program primarily targets
pollutants, other than those already covered by a NAAQS,
that present “a threat of adverse human health effects,” in-
cluding substances known or anticipated to be “carcinogenic,
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Opinion of the Court
mutagenic, teratogenic, neurotoxic,” or otherwise “acutely or
chronica
lly toxic.” § 7412(b)(2).
EPA's regulatory role with respect to these toxic pollut-
ants is different in kind from its role in administering the
NAAQS program. There, EPA is generally limited to de-
termining the maximum safe amount of covered pollutants
in the air. As to each hazardous pollutant, by contrast, the
Agency must promulgate emissions standards for both new
and existing major sources. § 7412(d)(1). Those standards
must “require the maximum degree of reduction in emissions
. . . that the [EPA] Administrator, taking into consideration
the cost of achieving such emission reduction, and any non-
air quality health and environmental impacts and energy re-
quirements, determines is achievable . . . through application
of measures, processes, methods, systems or techniques” of
emission reduction. § 7412(d)(2). In other words, EPA
must directly require all covered sources to reduce their
emissions to a certain level. And it chooses that level by
determining the “maximum degree of reduction” it considers
“achievable” in practice by using the best existing technolo-
gies and methods. § 7412(d)(3).
Thus, in the parlance of environmental law, Section 112
directs the Agency to impose “technology-based standard[s]
for hazardous emissions,” Alaska Dept. of Environmental
Conservation v. EPA, 540 U. S. 461, 485, n. 12 (2004) (empha-
sis added). This sort of “ `technology-based' approach fo-
cuses upon the control technologies that are available to in-
dustrial entities and requires the agency to . . . ensur[e] that
regulated frms adopt the appropriate cleanup technology.”
T. McGarity, Media-Quality, Technology, and Cost-Beneft
Balancing Strategies for Health and Environmental Regula-
tion, 46 Law & Contemp. Prob. 159, 160 (Summer 1983)
(McGarity). (Such “technologies” are not limited to literal
technology, such as scrubbers; “[c]hanges in the design and
operation” of the facility, or “in the way that employees
perform their tasks,” are also available options. Id., at
163, n. 18.)
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The third air pollution control scheme is the New Source
P
erformance Standards program of Section 111. § 7411.
That section directs EPA to list “categories of stationary
sources” that it determines “cause[ ], or contribute[ ] signif-
cantly to, air pollution which may reasonably be anticipated
to endanger public health or welfare. ” § 7411( b)(1)(A).
Under Section 111(b), the Agency must then promulgate for
each category “Federal standards of performance for new
sources,” § 7411(b)(1)(B). A “standard of performance” is
one that
“refects the degree of emission limitation achievable
through the application of the best system of emission
reduction which (taking into account the cost of achiev-
ing such reduction and any nonair quality health and
environmental impact and energy requirements) the
[EPA] Administrator determines has been adequately
demonstrated.” § 7411(a)(1).
Thus, the statute directs EPA to (1) “determine[ ],” taking
into account various factors, the “best system of emission
reduction which . . . has been adequately demonstrated,”
(2) ascertain the “degree of emission limitation achievable
through the application” of that system, and (3) impose an
emissions limit on new stationary sources that “refects” that
amount. Ibid.; see also 80 Fed. Reg. 64538 (2015). Gener-
ally speaking, a source may achieve that emissions cap any
way it chooses; the key is that its pollution be no more than
the amount “achievable through the application of the best
system of emission reduction . . . adequately demonstrated,”
or the BSER. § 7411(a)(1); see § 7411(b)(5). EPA under-
takes this analysis on a pollutant-by-pollutant basis, estab-
lishing different standards of performance with respect to
different pollutants emitted from the same source category.
See, e. g., 73 Fed. Reg. 35838 (2008); 42 Fed. Reg. 22510
(1977).
Although the thrust of Section 111 focuses on emissions
limits for new and modifed sources—as its title indicates—
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the statute also authorizes regulation of certain pollutants
from
existing sources. Under Section 111(d), once EPA
“has set new source standards addressing emissions of a par-
ticular pollutant under . . . section 111(b),” 80 Fed. Reg.
64711, it must then address emissions of that same pollutant
by existing sources—but only if they are not already regu-
lated under the NAAQS or HAP programs. § 7411(d)(1).
Existing power plants, for example, emit many pollutants
covered by a NAAQS or HAP standard. Section 111(d) thus
“operates as a gap-fller,” empowering EPA to regulate
harmful emissions not already controlled under the Agency's
other authorities. American Lung Assn. v. EPA, 985 F. 3d
914, 932 (CADC 2021).
Although the States set the actual rules governing exist-
ing power plants, EPA itself still retains the primary regula-
tory role in Section 111(d). The Agency, not the States, de-
cides the amount of pollution reduction that must ultimately
be achieved. It does so by again determining, as when set-
ting the new source rules, “the best system of emission re-
duction . . . that has been adequately demonstrated for [exist-
ing covered] facilities.” 40 CFR § 60.22(b)(5) (2021); see also
80 Fed. Reg. 64664, and n. 1. The States then submit plans
containing the emissions restrictions that they intend to
adopt and enforce in order not to exceed the permissible
level of pollution established by EPA. See §§ 60.23, 60.24;
42 U. S. C. § 7411(d)(1).
Refecting the ancillary nature of Section 111(d), EPA has
used it only a handful of times since the enactment of the
statute in 1970. See 80 Fed. Reg. 64703, and n. 275 (past
regulations pertained to “four pollutants from fve source
categories”). For instance, the Agency has established
emissions limits on acid mist from sulfuric acid production,
41 Fed. Reg. 48706 (1976) (identifying “fber mist eliminator”
technology as BSER); sulfde gases released by kraft pulp
mills, 44 Fed. Reg. 29829 (1979) (determining BSER to be a
combination of scrubbers, incineration, fltration systems,
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and temperature control); and emissions of various harmful
gases
from municipal landflls, 61 Fed. Reg. 9907 (1996) (set-
ting BSER as use of a fare to combust the gases). It was
thus only a slight overstatement for one of the architects of
the 1990 amendments to the Clean Air Act to refer to Section
111(d) as an “obscure, never-used section of the law.” Hear-
ings on S. 300 et al. before the Subcommittee on Environ-
mental Protection of the Senate Committee on Environment
and Public Works, 100th Cong., 1st Sess., 13 (1987) (remarks
of Sen. Durenberger).
B
Things changed in October 2015, when EPA promulgated
two rules addressing carbon dioxide pollution from power
plants—one for new plants under Section 111(b), the other
for existing plants under Section 111(d). Both were prem-
ised on the Agency's earlier fnding that carbon dioxide is an
“air pollutant” that “may reasonably be anticipated to endan-
ger public health or welfare” by causing climate change. 80
Fed. Reg. 64530. Carbon dioxide is not subject to a NAAQS
and has not been listed as a hazardous pollutant.
The frst rule announced by EPA established federal car-
bon emissions limits for new power plants of two varieties:
fossil-fuel-fred electric steam generating units (mostly coal
fred) and natural-gas-fred stationary combustion turbines.
Id., at 64512. Following the statutory process set out above,
the Agency determined the BSER for the two categories
of sources. For steam generating units, for instance, EPA
determined that the BSER was a combination of high-
effciency production processes and carbon capture technol-
ogy. See ibid. EPA then set the emissions limit based on
the amount of carbon dioxide that a plant would emit with
these technologies in place. Id., at 64513.
The second rule was triggered by the frst: Because EPA
was now regulating carbon dioxide from new coal and gas
plants, Section 111(d) required EPA to also address carbon
emissi ons from ex ist ing coa l and gas plants. See
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§ 7411(d)(1). It did so through what it called the Clean
Power
Plan rule.
In that rule, EPA established “fnal emission guidelines
for states to follow in developing plans” to regulate existing
power plants within their borders. Id., at 64662. To arrive
at the guideline limits, EPA did the same thing it does when
imposing federal regulations on new sources: It identifed
the BSER.
The BSER that the Agency selected for existing coal-fred
power plants, however, was quite different from the BSER it
had chosen for new sources. The BSER for existing plants
included three types of measures, which the Agency called
“building blocks.” Id., at 64667. The frst building block
was “heat rate improvements” at coal-fred plants—essen-
tially practices such plants could undertake to burn coal
more effciently. Id., at 64727. But such improvements,
EPA stated, would “lead to only small emission reductions,”
because coal-fred power plants were already operating near
optimum effciency. Ibid. On the Agency's view, “much
larger emission reductions [were] needed from [coal-fred
plants] to address climate change.” Ibid.
So the Agency included two additional building blocks in
its BSER, both of which involve what it called “generation
shifting from higher-emitting to lower-emitting ” producers
of electricity. Id., at 64728. Building block two was a shift
in electricity production from existing coal-fred power
plants to natural-gas-fred plants. Ibid. Because natural
gas plants produce “typically less than half as much” carbon
dioxide per unit of electricity created as coal-fred plants, the
Agency explained, “this generation shift [would] reduce[ ]
CO
2
emissions.” Ibid. Building block three worked the
same way, except that the shift was from both coal- and gas-
fred plants to “new low- or zero-carbon generating capacity,”
mainly wind and solar. Id., at 64729, 64748 (emphasis de-
leted). “Most of the CO
2
controls” in the rule came from the
application of building blocks two and three. Id., at 64728.
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The Agency identifed three ways in which a regulated
plant
operator could implement a shift in generation to
cleaner sources. Id., at 64731. First, an operator could
simply reduce the regulated plant's own production of elec-
tricity. Second, it could build a new natural gas plant, wind
farm, or solar installation, or invest in someone else's exist-
ing facility and then increase generation there. Ibid. Fi-
nally, operators could purchase emission allowances or cred-
its as part of a cap-and-trade regime. Id., at 64731–64732.
Under such a scheme, sources that achieve a reduction in
their emissions can sell a credit representing the value of
that reduction to others, who are able to count it toward
their own applicable emissions caps.
EPA explained that taking any of these steps would imple-
ment a sector-wide shift in electricity production from coal
to natural gas and renewables. Id., at 64731. Given the in-
tegrated nature of the power grid, “adding electricity to the
grid from one generator will result in the instantaneous re-
duction in generation from other generators,” and “reduc-
tions in generation from one generator lead to the instanta-
neous increase in generation” by others. Id., at 64769. So
coal plants, whether by reducing their own production, sub-
sidizing an increase in production by cleaner sources, or
both, would cause a shift toward wind, solar, and natural
gas.
Having decided that the “best system of emission reduc-
tion . . . adequately demonstrated” was one that would re-
duce carbon pollution mostly by moving production to
cleaner sources, EPA then set about determining “the de-
gree of emission limitation achievable through the applica-
tion” of that system. 42 U. S. C. § 7411(a)(1). The Agency
recognized that—given the nature of generation shifting—it
could choose from “a wide range of potential stringencies for
the BSER.” 80 Fed. Reg. 64730. Put differently, in trans-
lating the BSER into an operational emissions limit, EPA
could choose whether to require anything from a little gener-
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ation shifting to a great deal. The Agency settled on what
it
regarded as a “reasonable” amount of shift, which it based
on modeling of how much more electricity both natural gas
and renewable sources could supply without causing undue
cost increases or reducing the overall power supply. Id., at
64797–64811. Based on these changes, EPA projected that
by 2030, it would be feasible to have coal provide 27% of
national electricity generation, down from 38% in 2014. Id.,
at 64665, 64694; see Dept. of Energy, U. S. Energy Infor-
mation Admin., Monthly Energy Review (May 2015), Elec-
tr icity Net Generati on: Elec tr ic Power Sec tor, p. 106
(Table 7.2b).
From these signifcant projected reductions in generation,
EPA developed a series of complex equations to “determine
the emission performance rates” that States would be re-
quired to implement. 80 Fed. Reg. 64815. The calculations
resulted in numerical emissions ceilings so strict that no ex-
isting coal plant would have been able to achieve them with-
out engaging in one of the three means of shifting generation
described above. Indeed, the emissions limit the Clean
Power Plan established for existing power plants was actu-
ally stricter than the cap imposed by the simultaneously pub-
lished standards for new plants. Compare id., at 64742, with
id., at 64513.
The point, after all, was to compel the transfer of power
generating capacity from existing sources to wind and solar.
The White House stated that the Clean Power Plan would
“drive a[n] . . . aggressive transformation in the domestic
energy industry.” White House Fact Sheet, App. in Ameri-
can Lung Assn. v. EPA, No. 19–1140 etc. (CADC), p. 2076.
EPA's own modeling concluded that the rule would entail
billions of dollars in compliance costs (to be paid in the form
of higher energy prices), require the retirement of dozens of
coal-fred plants, and eliminate tens of thousands of jobs
across various sectors. EPA, Regulatory Impact Analysis
for the Clean Power Plan Final Rule 3–22, 3–30, 3–33, 6–24,

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6 – 25 (2015). The Energ y Infor mati on Admi nistrati on
reached
similar conclusions, projecting that the rule would
cause retail electricity prices to remain persistently 10%
higher in many States, and would reduce GDP by at least a
trillion 2009 dollars by 2040. Dept. of Energy, Analysis of
the Impacts of the Clean Power Plan 21, 63–64 (May 2015).
C
These projections were never tested, because the Clean
Power Plan never went into effect. The same day that EPA
promulgated the rule, dozens of parties (including 27 States)
petitioned for review in the D. C. Circuit. After that court
declined to enter a stay of the rule, the challengers sought
the same relief from this Court. We granted a stay, pre-
venting the rule from taking effect. West Virginia v. EPA,
577 U. S. 1126 (2016). The Court of Appeals later heard ar-
gument on the merits en banc. But before it could issue a
decision, there was a change in Presidential administrations.
The new administration requested that the litigation be held
in abeyance so that EPA could reconsider the Clean Power
Plan. The D. C. Circuit obliged, and later dismissed the pe-
titions for review as moot.
EPA eventually repealed the rule in 2019, concluding that
the Clean Power Plan had been “in excess of its statutory
authority” under Section 111(d). 84 Fed. Reg. 32523 (2019).
Specifcally, the Agency concluded that generation shifting
should not have been considered as part of the BSER. The
Agency interpreted Section 111 as “limit[ing] the BSER to
those systems that can be put into operation at a building,
structure, facility, or installation,” such as “add-on controls”
and “inherently lower-emitting processes/practices/designs.”
Id., at 32524. It then explained that the Clean Power Plan,
rather than setting the standard “based on the application of
equipment and practices at the level of an individual facility,”
had instead based it on “a shift in the energy generation mix
at the grid level,” id., at 32523—not the sort of measure that
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has “a Potential for Application to an Individual Source.”
Id.
, at 32524.
The Agency determined that “the interpretative question
raised” by the Clean Power Plan—“i. e., whether a `system
of emission reduction' can consist of generation-shif ting
measures”—fell under the “major question doctrine.” Id.,
at 32529. Under that doctrine, EPA explained, courts “ex-
pect Congress to speak clearly if it wishes to assign to an
agency decisions of vast economic and political signifcance.”
Ibid. (quoting Utility Air Regulatory Group v. EPA, 573
U. S. 302, 324 (2014) (internal quotation marks omitted)).
The Agency concluded that the Clean Power Plan was such
a decision, for a number of reasons. Its “generation-shifting
scheme was projected to have billions of dollars of impact.”
84 Fed. Reg. 32529. “[N]o section 111 rule of the scores
issued ha[d] ever been based on generation shifting.” Ibid.
And that novel reading of the statute would empower EPA
“to order the wholesale restructuring of any industrial sec-
tor” based only on its discretionary assessment of “such fac-
tors as `cost' and `feasibility.' ” Ibid.
EPA argued that under the major questions doctrine, a
clear statement was necessary to conclude that Congress in-
tended to delegate authority “of this breadth to regulate a
fundamental sector of the economy.” Ibid. It found none.
“Indeed,” it concluded, given the text and structure of the
statute, “Congress has directly spoken to this precise ques-
tion and precluded” the use of measures such as generation
shifting. Ibid.
In the same rulemaking, the Agency replaced the Clean
Power Plan by promulgating a different Section 111(d) regu-
lation, known as the Affordable Clean Energy (ACE) Rule.
Id., at 32532. Based on its view of what measures may per-
missibly make up the BSER, EPA determined that the best
system would be akin to building block one of the Clean
Power Plan: a combination of equipment upgrades and oper-
ating practices that would improve facilities' heat rates. Id.,
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at 32522, 32537. The ACE Rule determined that the appli-
cati
on of its BSER measures would result in only small re-
ductions in carbon dioxide emissions. Id., at 32561.
D
A number of States and private parties immediately fled
petitions for review in the D. C. Circuit, challenging EPA's
repeal of the Clean Power Plan and its enactment of the re-
placement ACE Rule. Other States and private entities—
including petitioners here West Virginia, North Dakota, and
Westmoreland Mining Holdings LLC—intervened to defend
both actions.
The Court of Appeals consolidated all 12 petitions for re-
view into one case. It then held that EPA's “repeal of the
Clean Power Plan rested critically on a mistaken reading of
the Clean Air Act”—namely, that generation shifting cannot
be a “system of emission reduction” under Section 111. 985
F. 3d, at 995. To the contrary, the court concluded, the stat-
ute could reasonably be read to encompass generation shift-
ing. As part of that analysis, the Court of Appeals con-
cluded that the major questions doctrine did not apply, and
thus rejected the need for a clear statement of congressional
intent to delegate such power to EPA. Id., at 959–968.
Having found that EPA misunderstood the scope of its au-
thority under the Clean Air Act, the Court vacated the
Agency's repeal of the Clean Power Plan and remanded to
the Agency for further consideration. Id., at 995. It also
vacated and remanded the replacement rule, the ACE Rule,
for the same reason. Ibid.
The court's decision, handed down on January 19, 2021,
was quickly followed by another change in Presidential ad-
ministrations. One month later, EPA moved the Court of
Appeals to partially stay the issuance of its mandate as it
pertained to the Clean Power Plan. The Agency did so to
ensure that the Clean Power Plan would not immediately go
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back into effect. Respondents' Motion for a Partial Stay of
Issuance
of the Mandate in American Lung Assn. v. EPA,
No. 19–1140 etc. (CADC), p. 4. EPA believed that such a
result would not make sense while it was in the process of
considering whether to promulgate a new Section 111(d)
rule. Ibid. No party opposed the motion, and the court
accordingly stayed its vacatur of the Agency's repeal of the
Clean Power Plan.
Westmoreland, The North American Coal Corporation,
and the States defending the repeal of the Clean Power Plan
all fled petitions for certiorari. We granted the petitions
and consolidated the cases. 595 U. S. ––– (2021).
II
We frst consider the Government's contention that no
petitioner has Article III standing to seek our review.
Although most disputes over standing concern whether a
plaintiff has satisfed the requirement when fling suit, “Arti-
cle III demands that an actual controversy persist through-
out all stages of litigation.” Hollingsworth v. Perry, 570
U. S. 693, 705 (2013) (internal quotation marks omitted).
The requirement of standing “must be met by persons seek-
ing appellate review, just as it must be met by persons ap-
pearing in courts of frst instance.” Arizonans for Offcial
English v. Arizona, 520 U. S. 43, 64 (1997). In considering
a litigant's standing to appeal, the question is whether it has
experienced an injury “fairly traceable to the judgment
below.” Food Marketing Institute v. Argus Leader Media,
588 U. S. –––, ––– (2019) (emphasis added; internal quotation
marks omitted). If so, and a “favorable ruling ” from the
appellate court “would redress [that] injury,” then the appel-
lant has a cognizable Article III stake. Ibid.
Here, it is apparent that at least one group of petitioners—
the state petitioners—are injured by the Court of Appeals'
judgment. That judgment vacated “the ACE rule and its
embedded repeal of the Clean Power Plan,” 985 F. 3d, at 995
(emphasis added), and accordingly purports to bring the

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Clean Power Plan back into legal effect. Thus, to the extent
the
Clean Power Plan harms the States, the D. C. Circuit's
judgment inficts the same injury. And there can be “little
question” that the rule does injure the States, since they are
“the object of ” its requirement that they more stringently
regulate power plant emissions within their borders. Lujan
v. Defenders of Wildlife, 504 U. S. 555, 561–562 (1992).
The Government counters that “agency and judicial ac-
tions” subsequent to the court's entry of judgment have
“eliminated any . . . possibility” of injury. Brief for Federal
Respondents 16. First, after the decision, EPA informed
the Court of Appeals that it does not intend to enforce the
Clean Power Plan because it has decided to promulgate a
new Section 111(d) rule. Second, on EPA's request, the
lower court stayed the part of its judgment that vacated the
repeal, pending that new rulemaking. “These circum-
stances,” says the Government, “have mooted the prior dis-
pute as to the CPP Repeal Rule's legality.” Id., at 17 (em-
phasis added).
That Freudian slip, however, reveals the basic faw in the
Government's argument: It is the doctrine of mootness, not
standing, that addresses whether “an intervening circum-
stance [has] deprive[d] the plaintiff of a personal stake in
the outcome of the lawsuit.” Genesis HealthCare Corp. v.
Symczyk, 569 U. S. 66, 72 (2013) (internal quotation marks
omitted); see also Friends of the Earth, Inc. v. Laidlaw En-
vironmental Services (TOC), Inc., 528 U. S. 167, 189–192
(2000). The distinction matters because the Government,
not petitioners, bears the burden to establish that a once-live
case has become moot. Id., at 189; Adarand Constructors,
Inc. v. Slater, 528 U. S. 216, 222 (2000) (per curiam).
That burden is “heavy” where, as here, “[t]he only conceiv-
able basis for a fnding of mootness in th[e] case is [the re-
spondent's] voluntary conduct.” Friends of the Earth, 528
U. S., at 189. Although the Government briefy argues that
the lower court's stay of its mandate extinguished the con-
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troversy, it cites no authority for that proposition, and it does
not
make sense: Lower courts frequently stay their man-
dates when notifed that the losing party intends to seek our
certiorari review. So the Government's mootness argument
boils down to its representation that EPA has no intention
of enforcing the Clean Power Plan prior to promulgating a
new Section 111(d) rule.
But “[v]oluntary cessation does not moot a case” unless it
is “absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.” Parents In-
volved in Community Schools v. Seattle School Dist. No. 1,
551 U. S. 701, 719 (2007). Here the Government “nowhere
suggests that if this litigation is resolved in its favor it will
not” reimpose emissions limits predicated on generation
shifting; indeed, it “vigorously defends” the legality of such
an approach. Ibid. We do not dismiss a case as moot in
such circumstances. See City of Mesquite v. Aladdin's Cas-
tle, Inc., 455 U. S. 283, 288–289 (1982). The case thus re-
mains justiciable, and we may turn to the merits.
III
A
In devising emissions limits for power plants, EPA frst
“determines” the “best system of emission reduction” that—
taking into account cost, health, and other factors—it fnds
“has been adequately demonstrated.” 42 U. S. C. § 7411(a)
(1). The Agency then quantifes “the degree of emission
limitation achievable” if that best system were applied to
the covered source. Ibid.; see also 80 Fed. Reg. 64719. The
BSER, therefore, “is the central determination that the EPA
must make in formulating [its emission] guidelines” under
Section 111. Id., at 64723. The issue here is whether re-
structuring the Nation's overall mix of electricity genera-
tion, to transition from 38% coal to 27% coal by 2030, can be
the “best system of emission reduction” within the meaning
of Section 111.

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“It is a fundamental canon of statutory construction that
the
words of a statute must be read in their context and with
a view to their place in the overall statutory scheme.”
Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809
(1989). Where the statute at issue is one that confers au-
thority upon an administrative agency, that inquiry must be
“shaped, at least in some measure, by the nature of the ques-
tion presented”—whether Congress in fact meant to confer
the power the agency has asserted. FDA v. Brown & Wil-
liamson Tobacco Corp., 529 U. S. 120, 159 (2000). In the or-
dinary case, that context has no great effect on the appro-
priate analysis. Nonetheless, our precedent teaches that
there are “extraordinary cases” that call for a different ap-
proach—cases in which the “history and the breadth of the
authority that [the agency] has asserted,” and the “economic
and political signifcance” of that assertion, provide a “reason
to hesitate before concluding that Congress” meant to confer
such authority. Id., at 159–160.
Such cases have arisen from all corners of the administra-
tive state. In Brown & Williamson, for instance, the Food
and Drug Administration claimed that its authority over
“drugs” and “devices” included the power to regulate, and
even ban, tobacco products. Id., at 126–127. We rejected
that “expansive construction of the statute,” concluding that
“Congress could not have intended to delegate” such a
sweeping and consequential authority “in so cryptic a fash-
ion.” Id., at 160. In Alabama Assn. of Realtors v. Depart-
ment of Health and Human Servs., 594 U. S. –––, ––– (2021)
(per curiam), we concluded that the Centers for Disease
Control and Prevention could not, under its authority to
adopt measures “necessary to prevent the . . . spread of ”
disease, institute a nationwide eviction moratorium in re-
sponse to the COVID–19 pandemic. We found the statute's
language a “wafer-thin reed” on which to rest such a meas-
ure, given “the sheer scope of the CDC's claimed authority,”
its “unprecedented” nature, and the fact that Congress had
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failed to extend the moratorium after previously having done
so
. Id., at ––– – –––.
Our decision in Utility Air addressed another question re-
garding EPA's authority—namely, whether EPA could con-
strue the term “air pollutant,” in a specifc provision of the
Clean Air Act, to cover greenhouse gases. 573 U. S., at 310.
Despite its textual plausibility, we noted that the Agency's
interpretation would have given it permitting authority over
millions of small sources, such as hotels and offce buildings,
that had never before been subject to such requirements.
Id., at 310, 324. We declined to uphold EPA's claim of “un-
heralded” regulatory power over “a signifcant portion of the
American economy.” Id., at 324. In Gonzales v. Oregon,
546 U. S. 243 (2006), we confronted the Attorney General's
assertion that he could rescind the license of any physician
who prescribed a controlled substance for assisted suicide,
even in a State where such action was legal. The Attorney
General argued that this came within his statutory power to
revoke licenses where he found them “inconsistent with the
public interest,” 21 U. S. C. § 823(f ). We considered the
“idea that Congress gave [him] such broad and unusual au-
thority through an implicit delegation . . . not sustainable.”
546 U. S., at 267. Similar considerations informed our re-
cent decision invalidating the Occupational Safety and
Health Administration's mandate that “84 million Americans
. . . either obtain a COVID–19 vaccine or undergo weekly
medical testing at their own expense.” National Federa-
tion of Independent Business v. Occupational Safety and
Health Administration, 595 U. S. 109, 117 (2022) (per cu-
riam). We found it “telling that OSHA, in its half century
of existence,” had never relied on its authority to regulate
occupational hazards to impose such a remarkable measure.
Id., at 119.
All of these regulatory assertions had a colorable textual
basis. And yet, in each case, given the various circum-
stances, “common sense as to the manner in which Congress

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[would have been] likely to delegate” such power to the
agency
at issue, Brown & Williamson, 529 U. S., at 133,
made it very unlikely that Congress had actually done so.
Extraordinary grants of regulatory authority are rarely ac-
complished through “modest words,” “vague terms,” or “sub-
tle device[s].” Whitman, 531 U. S., at 468. Nor does Con-
gress typically use oblique or elliptical language to empower
an agency to make a “radical or fundamental change” to
a statutory scheme. MCI Telecommunications Cor p. v.
American Telephone & Telegraph Co., 512 U. S. 218, 229
(1994). Agencies have only those powers given to them by
Congress, and “enabling legislation” is generally not an
“open book to which the agency [may] add pages and change
the plot line.” E. Gellhorn & P. Verkuil, Controlling
Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 1011
(1999). We presume that “Congress intends to make major
policy decisions itself, not leave those decisions to agencies.”
United States Telecom Assn. v. FCC, 855 F. 3d 381, 419
(CADC 2017) (Kavanaugh, J., dissenting from denial of re-
hearing en banc).
Thus, in certain extraordinary cases, both separation of
powers principles and a practical understanding of legisla-
tive intent make us “reluctant to read into ambiguous statu-
tory text” the delegation claimed to be lurking there. Util-
i ty Air, 573 U. S., at 324. To conv i nce us other w ise,
something more than a merely plausible textual basis for the
agency action is necessary. The agency instead must point
to “clear congressional authorization” for the power it
claims. Ibid.
The dissent criticizes us for “announc[ing] the arrival” of
this major questions doctrine, and argues that each of the
decisions just cited simply followed our “ordinary method”
of “normal statutory interpretation,” post, at 764, 766 (opin-
ion of Kagan, J.). But in what the dissent calls the “key
case” in this area, Brown & Williamson, post, at 767, the
Court could not have been clearer: “In extraordinary cases . . .
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there may be reason to hesitate” before accepting a reading
of
a statute that would, under more “ordinary” circum-
stances, be upheld. 529 U. S., at 159. Or, as we put it more
recently, we “typically greet” assertions of “extravagant
statutory power over the national economy” with “skepti-
cism.” Utility Air, 573 U. S., at 324. The dissent attempts
to ft the analysis in these cases within routine statutory
interpretation, but the bottom line—a requirement of “clear
congressional authorization,” ibid.—confrms that the ap-
proach under the major questions doctrine is distinct.
As for the major questions doctrine “label[ ],” post, at 764,
it took hold because it refers to an identifable body of law
that has developed over a series of signifcant cases all ad-
dressing a particular and recurring problem: agencies assert-
ing highly consequential power beyond what Congress could
reasonably be understood to have granted. Scholars and ju-
rists have recognized the common threads between those de-
cisions. So have we. See Utility Air, 573 U. S., at 324 (cit-
ing Brown & Williamson and MCI); King v. Burwell, 576
U. S. 473, 486 (2015) (citing Utility Air, Brown & William-
son, and Gonzales).
B
Under our precedents, this is a major questions case. In
arguing that Section 111(d) empowers it to substantially re-
structure the American energy market, EPA “claim[ed] to
discover in a long-extant statute an unheralded power” rep-
resenting a “transformative expansion in [its] regulatory au-
thority.” Utility Air, 573 U. S., at 324. It located that
newfound power in the vague language of an “ancillary pro-
vision[ ]” of the Act, Whitman, 531 U. S., at 468, one that
was designed to function as a gap fller and had rarely been
used in the preceding decades. And the Agency's discovery
allowed it to adopt a regulatory program that Congress
had conspicuously and repeatedly declined to enact itself.
Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546
U. S., at 267–268; Alabama Assn., 594 U. S., at –––, –––.

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Given these circumstances, there is every reason to “hesitate
before
concluding that Congress” meant to confer on EPA
the authority it claims under Section 111(d). Brown & Wil-
liamson, 529 U. S., at 159–160.
Prior to 2015, EPA had always set emissions limits under
Section 111 based on the application of measures that would
reduce pollution by causing the regulated source to operate
more cleanly. See, e. g., 41 Fed. Reg. 48706 (requiring “de-
gree of control achievable through the application of fber
mist eliminators”); see also supra, at 710–711. It had never
devised a cap by looking to a “system” that would reduce
pollution simply by “shifting ” polluting activity “from dirtier
to cleaner sources.” 80 Fed. Reg. 64726; see id., at 64738
(“[O]ur traditional interpretation . . . has allowed regulated
entities to produce as much of a particular good as they de-
sire provided that they do so through an appropriately clean
(or low-emitting) process.”). And as Justice Frankfurter
has noted, “just as established practice may shed light on the
extent of power conveyed by general statutory language, so
the want of assertion of power by those who presumably
would be alert to exercise it, is equally signifcant in deter-
mining whether such power was actually conferred.” FTC
v. Bunte Brothers, Inc., 312 U. S. 349, 352 (1941).
The Government quibbles with this description of the his-
tory of Section 111(d), pointing to one rule that it says relied
upon a cap-and-trade mechanism to reduce emissions. See
70 Fed. Reg. 28616 (2005) (Mercury Rule). The legality of
that choice was controversial at the time and was never ad-
dressed by a court. See New Jersey v. EPA, 517 F. 3d 574
(CADC 2008) (vacating on other grounds). Even assuming
the Rule was valid, though, it still does not help the Govern-
ment. In that regulation, EPA set the actual “emission
cap”—i. e., the limit on emissions that sources would be re-
quired to meet—“based on the level of [mercury] emissions
reductions that w[ould] be achievable by” the use of “technol-
ogies [that could be] installed and operational on a nation-
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wide basis” in the relevant timeframe—namely, wet scrub-
bers.
70 Fed. Reg. 28620–28621. In other words, EPA set
the cap based on the application of particular controls, and
regulated sources could have complied by installing them.
By contrast, and by design, there is no control a coal plant
operator can deploy to attain the emissions limits established
by the Clean Power Plan. See supra, at 714–715. The
Mercury Rule, therefore, is no precedent for the Clean
Power Plan. To the contrary, it was one more entry in an
unbroken list of prior Section 111 rules that devised the en-
forceable emissions limit by determining the best control
mechanisms available for the source.
1
This consistent understanding of “system[s] of emission re-
duction” tracked the seemingly universal view, as stated by
EPA in its inaugural Section 111(d) rulemaking, that “Con-
gress intended a technology-based approach” to regulation
in that Section. 40 Fed. Reg. 53343 (1975); see id., at 53341
(“degree of control to be refected in EPA's emission guide-
lines” will be based on “application of best adequately dem-
onstrated control technology”).
2
A technology-based stand-
1
The dissent cites other ostensible precedents, see post, at 776–777, but
they are also inapposite. A few allowed cap-and-trade or similar averag-
ing measures as compliance mechanisms, like the Mercury Rule. See,
e. g., 60 Fed. Reg. 65402 (1995). The others were not Section 111 rules.
2
See McGarity 165 (EPA promulgates “technology-based new source
performance standards that require the implementation of the `best avail-
able demonstrated' technology”); P. McCubbin, The Risk in Technology-
Based Standards, 16 Duke Env. L. & Pol'y Forum 1, 46, n. 180 (2005)
(Section 111 standards “are another set of technology-based standards”);
W. Wagner, The Triumph of Technology-Based Standards, 2000 U. Ill.
L. Rev. 83, 84, n. 4 (“Technology-based standards made their initial appear-
ance” in “Section 111 of the Clean Air Act,” which “requires the EPA to
set technology-based emission limitations”).
The dissent points to a 1977 amendment to Section 111 as evidence that
the 1970 Congress did not intend for EPA to establish this sort of source-
specifc standard. Post, at 762–763. But it is clear that the 1977 amend-
ment was merely intended to prohibit power plants from adopting one
specifc kind of at-the-source measure—a switch from burning high-sulfur
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ard, recall, is one that focuses on improving the emissions
per
formance of individual sources. EPA “commonly re-
ferred to” the “level of control” required as a “best demon-
strated technology (BDT)” standard, 73 Fed. Reg. 34073, and
consistently applied it as such. E. g., 61 Fed. Reg. 9907 (de-
claring “BDT” to be “a well-designed and well-operated gas
collection system and . . . a control device capable of reducing
[harmful gases] in the collected gas by 98 weight-percent.”).
Indeed, EPA nodded to this history in the Clean Power
Plan itself, describing the sort of “systems of emission reduc-
tion” it had always before selected—“effciency improve-
ments, fuel-switching,” and “add-on controls”—as “more tra-
ditional air pollution control measures.” 80 Fed. Reg. 64765,
64784. The Agency noted that it had “considered” such
measures as potential systems of emission reduction for car-
bon dioxide, ibid., including a measure it ultimately adopted
as a “component” of the BSER, namely, heat rate improve-
ments. Id., at 64727.
But, the Agency explained, in order to “control[ ] CO
2
from
affected [plants] at levels . . . necessary to mitigate the dan-
gers presented by climate change,” it could not base the
emissions limit on “measures that improve effciency at the
power plants.” Id., at 64728. “The quantity of emissions
reductions resulting from the application of these measures”
would have been “too small.” Id., at 64727. Instead, to at-
tain the necessary “critical CO
2
reductions,” EPA adopted
what it called a “broader, forward-thinking approach to the
design” of Section 111 regulations. Id., at 64703. Rather
than focus on improving the performance of individual
sources, it would “improve the overall power system by low-
ering the carbon intensity of power generation.” Ibid. (em-
phasis added). And it would do that by forcing a shift
coal to low-sulfur coal—and was not intended or understood to change the
basic, source-focused regulatory approach. See Wisconsin Elec. Power
Co. v. Reilly, 893 F. 2d 901, 919 (CA7 1990) (explaining the history); B.
Ackerman & W. Hassler, Clean Coal/Dirty Air (1981) (same).
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throughout the power grid from one type of energy source
to
another. In the words of the then-EPA Administrator,
the rule was “not about pollution control” so much as it was
“an investment opportunity” for States, especially “invest-
ments in renewables and clean energy.” Oversight Hearing
on EPA's Proposed Carbon Pollution Standards for Existing
Power Plants before the Senate Committee on Environment
and Public Works, 113th Cong., 2d Sess., p. 33 (2014).
This view of EPA's authority was not only unprecedented;
it also effected a “fundamental revision of the statute, chang-
ing it from [one sort of] scheme of . . . regulation” into an
entirely different kind. MCI, 512 U. S., at 231. Under the
Agency's prior view of Section 111, its role was limited to
ensuring the effcient pollution performance of each individ-
ual regulated source. Under that paradigm, if a source was
already operating at that level, there was nothing more for
EPA to do. Under its newly “discover[ed]” authority, Util-
ity Air, 573 U. S., at 324, however, EPA can demand much
greater reductions in emissions based on a very different
kind of policy judgment: that it would be “best” if coal made
up a much smaller share of national electricity generation.
And on this view of EPA's authority, it could go further, per-
haps forcing coal plants to “shift” away virtually all of their
generation—i. e., to cease making power altogether.
3
The Government attempts to downplay the magnitude of
this “unprecedented power over American industry.” In-
dustrial Union Dept., AFL–CIO v. American Petroleum In-
stitute, 448 U. S. 607, 645 (1980) (plurality opinion). The
3
The dissent suggests that EPA could bring about the same result by,
for example, simply requiring coal plants to become natural gas plants,
and that this would ft within the prior regulatory approach of effciency-
improving, at-the-source measures. Post, at 775. Of course, EPA has
never ordered anything remotely like that, and we doubt it could. Section
111(d) empowers EPA to guide States in “establish[ing] standards of per-
formance” for “existing source[s],” § 7411(d)(1), not to direct existing
sources to effectively cease to exist.
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Opinion of the Court
amount of generation shifting ordered, it argues, must be
“adequately
demonstrated” and “best” in light of the statu-
tory factors of “cost,” “nonair quality health and environ-
mental impact,” and “energy requirements.” 42 U. S. C.
§ 7411(a)(1). EPA therefore must limit the magnitude of
generation shift it demands to a level that will not be “ex-
orbitantly costly” or “threaten the reliability of the grid.”
Brief for Federal Respondents 42.
But this argument does not so much limit the breadth of
the Government's claimed authority as reveal it. On EPA's
view of Section 111(d), Congress implicitly tasked it, and it
alone, with balancing the many vital considerations of na-
tional policy implicated in deciding how Americans will get
their energy. EPA decides, for instance, how much of a
switch from coal to natural gas is practically feasible by 2020,
2025, and 2030 before the grid collapses, and how high en-
ergy prices can go as a result before they become unreason-
ably “exorbitant.”
There is little reason to think Congress assigned such deci-
sions to the Agency. For one thing, as EPA itself admitted
when requesting special funding, “Understand[ing] and pro-
ject[ing] system-wide . . . trends in areas such as electricity
transmission, distribution, and storage” requires “technical
and policy expertise not traditionally needed in EPA regula-
tory development.” EPA, Fiscal Year 2016: Justifcation of
Appropriation Estimates for the Committee on Appropria-
tions 213 (2015) (emphasis added). “When [an] agency has
no comparative expertise” in making certain policy judg-
ments, we have said, “Congress presumably would not” task
it with doing so. Kisor v. Wilkie, 588 U. S. –––, ––– (2019);
see also Gonzales, 546 U. S., at 266–267.
We also fnd it “highly unlikely that Congress would leave”
to “agency discretion” the decision of how much coal-based
generation there should be over the coming decades. MCI,
512 U. S., at 231; see also Brown & Williamson, 529 U. S., at
160 (“We are confdent that Congress could not have in-
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tended to delegate a decision of such economic and political
sig
nifcance to an agency in so cryptic a fashion.”). The
basic and consequential tradeoffs involved in such a choice
are ones that Congress would likely have intended for itself.
See W. Eskridge, Interpreting Law: A Primer on How To
Read Statutes and the Constitution 288 (2016) (“Even if Con-
gress has delegated an agency general rulemaking or adjudi-
catory power, judges presume that Congress does not dele-
gate its authority to settle or amend major social and
economic policy decisions.”). Congress certainly has not
conferred a like authority upon EPA anywhere else in the
Clean Air Act. The last place one would expect to fnd it is
in the previously little-used backwater of Section 111(d).
The dissent contends that there is nothing surprising
about EPA dictating the optimal mix of energy sources na-
tionwide, since that sort of mandate will reduce air pollution
from power plants, which is EPA's bread and butter. Post,
at 771–773. But that does not follow. Forbidding evictions
may slow the spread of disease, but the CDC's ordering such
a measure certainly “raise[s] an eyebrow.” Post, at 770.
We would not expect the Department of Homeland Security
to make trade or foreign policy even though doing so could
decrease illegal immigration. And no one would consider
generation shifting a “tool” in OSHA's “toolbox,” post, at
772, even though reducing generation at coal plants would
reduce workplace illness and injury from coal dust.
The dissent also cites our decision in American Elec.
Power Co. v. Connecticut, 564 U. S. 410 (2011). Post, at 771.
The question there, however, was whether Congress wanted
district court judges to decide, under unwritten federal nui-
sance law, “whether and how to regulate carbon-dioxide
emissions from powerplants.” 564 U. S., at 426. We an-
swered no, given the existence of Section 111(d). But we
said nothing about the ways in which Congress intended
EPA to exercise its power under that provision. And it is
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require a large shift from coal to natural gas, wind, and solar.
Af
ter all, EPA had never regulated in that manner, despite
having issued many prior rules governing power plants
under Section 111. See, e. g., 71 Fed. Reg. 9866 (2006); 70 Fed.
Reg. 28616; 44 Fed. Reg. 33580; 36 Fed. Reg. 24875 (1971).
4
Finally, we cannot ignore that the regulatory writ EPA
newly uncovered conveniently enabled it to enact a program
that, long after the dangers posed by greenhouse gas emis-
sions “had become well known, Congress considered and re-
jected” multiple times. Brown & Williamson, 529 U. S., at
144; see also Alabama Assn., 594 U. S., at –––; Bunte Broth-
ers, 312 U. S., at 352 (lack of authority not previously exer-
cised “reinforced by [agency's] unsuccessful attempt . . . to
secure from Congress an express grant of [the challenged]
authority”). At bottom, the Clean Power Plan essentially
adopted a cap-and-trade scheme, or set of state cap-and-
trade schemes, for carbon. See 80 Fed. Reg. 64734 (“Emis-
sions trading is . . . an integral part of our BSER analysis.”).
Congress, however, has consistently rejected proposals to
amend the Clean Air Act to create such a program. See,
e. g., American Clean Energy and Security Act of 2009, H. R.
2454, 111th Cong., 1st Sess.; Clean Energy Jobs and Ameri-
can Power Act, S. 1733, 111th Cong., 1st Sess. (2009). It has
4
According to the dissent, “EPA is always controlling the mix of energy
sources” under Section 111 because all of the Agency's rules impose some
costs on regulated plants, and therefore (all else equal) cause those plants
to lose some share of the electricity market. Post, at 773. But there is
an obvious difference between (1) issuing a rule that may end up causing
an incidental loss of coal's market share, and (2) simply announcing what
the market share of coal, natural gas, wind, and solar must be, and then
requiring plants to reduce operations or subsidize their competitors to get
there. No one has ever thought that the Clean Power Plan was just busi-
ness as usual. See American Lung Assn. v. EPA, 985 F. 3d 914, 1000
(CADC 2021) (Walker, J., dissenting) (“Leaders of the environmental
movement considered the rule `groundbreaking,' called its announcement
`historic,' and labeled it a `critically important catalyst.' ” (footnotes
omitted)).
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also declined to enact similar measures, such as a carbon tax.
See
, e. g., Climate Protection Act of 2013, S. 332, 113th Cong.,
1st Sess.; Save Our Climate Act of 2011, H. R. 3242, 112th
Cong., 1st Sess. “The importance of the issue,” along with
the fact that the same basic scheme EPA adopted “has been
the subject of an earnest and profound debate across the
country, . . . makes the oblique form of the claimed delegation
all the more suspect.” Gonzales, 546 U. S., at 267–268 (in-
ternal quotation marks omitted).
C
Given these circumstances, our precedent counsels skepti-
cism toward EPA's claim that Section 111 empowers it to
devise carbon emissions caps based on a generation shifting
approach. To overcome that skepticism, the Government
must—under the major questions doctrine—point to “clear
congressional authorization” to regulate in that manner.
Utility Air, 573 U. S., at 324.
All the Government can offer, however, is the Agency's
authority to establish emissions caps at a level refecting
“the application of the best system of emission reduction . . .
adequately demonstrated.” 42 U. S. C. § 7411(a)(1). As a
matter of “defnitional possibilities,” FCC v. AT&T Inc., 562
U. S. 397, 407 (2011), generation shifting can be described as
a “system”—“an aggregation or assemblage of objects united
by some form of regular interaction,” Brief for Federal Re-
spondents 31—capable of reducing emissions. But of course
almost anything could constitute such a “system”; shorn of
all context, the word is an empty vessel. Such a vague stat-
utory grant is not close to the sort of clear authorization
required by our precedents.
The Government, echoed by the other respondents, looks
to other provisions of the Clean Air Act for support. It
points out that the Act elsewhere uses the word “system” or
“similar words” to describe cap-and-trade schemes or other
sector-wide mechanisms for reducing pollution. Ibid. The
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Acid Rain program set out in Title IV of the Act establishes
a
cap-and-trade scheme for reducing sulfur dioxide emis-
sions, which the statute refers to as an “emission allocation
and transfer system. ” § 7651(b) (emphasis added). And
Section 110 of the NAAQS program specifes that “market-
able permits” and “auctions of emissions rights” qualify as
“control measures, means, or techniques” that States may
adopt in their state implementation plans in order “to meet
the applicable requirements of ” a NAAQS. § 7410(a)(2)(A).
If the word “system” or similar words like “technique” or
“means” can encompass cap-and-trade, the Government
maintains, why not in Section 111?
But just because a cap-and-trade “system” can be used to
reduce emissions does not mean that it is the kind of “system
of emission reduction” referred to in Section 111. Indeed,
the Government's examples demonstrate why it is not.
First, unlike Section 111, the Acid Rain and NAAQS pro-
grams contemplate trading systems as a means of complying
with an already established emissions limit, set either di-
rectly by Congress (as with Acid Rain, see 42 U. S. C. § 7651c)
or by reference to the safe concentration of the pollutant in
the ambient air (as with the NAAQS). In Section 111, by
contrast, it is EPA's job to come up with the cap itself: the
“numerical limit on emissions” that States must apply to
each source. 80 Fed. Reg. 64768. We doubt that Congress
directed the Agency to set an emissions cap at the level
“which refects the degree of emission limitation achievable
through the appl icati on of [a cap-and-trade] system, ”
§ 7411(a)(1), for that degree is indeterminate. It is one thing
for Congress to authorize regulated sources to use trading
to comply with a preset cap, or a cap that must be based on
some scientifc, objective criterion, such as the NAAQS. It
is quite another to simply authorize EPA to set the cap itself
wherever the Agency sees ft.
Second, Congress added the above authorizations for the
use of emissions trading programs in 1990, simultaneous with
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amending Section 111 to its present form. At the time, cap-
and-trade
was a novel and highly touted concept. The Acid
Rain program was “the nation's frst-ever emissions trading
program.” L. Heinzerling & R. Steinzor, A Perfect Storm:
Mercury and the Bush Administration, 34 Env. L. Rep. 10297,
10309 (2004). And Congress went out of its way to amend
the NAAQS statute to make absolutely clear that the “meas-
ures, means, [and] techniques” States could use to meet the
NAAQS included cap-and-trade. § 7410(a)(2)(A). Yet “not
a peep was heard from Congress about the possibility that
a trading regime could be installed under § 111.” Id., at
10309.
Finally, the Government notes that other parts of the
Clean Air Act, past and present, have “explicitly limited the
permissible components of a particular `system' ” of emission
reduction in some regard. Brief for Federal Respondents
32. For instance, a separate section of the statute empow-
ers EPA to require the “degree of reduction achievable
through the retroft application of the best system of contin-
uous emission reduction.” § 7651f(b)(2) (emphasis added).
The comparatively unadorned use of the phrase “best system
of emission reduction” in Section 111, the Government urges,
“suggest[s] a conscious congressional” choice not to limit the
measures that may constitute the BSER to those applicable
at or to an individual source. Id., at 32.
These arguments, however, concern an interpretive ques-
tion that is not at issue. We have no occasion to decide
whether the statutory phrase “system of emission reduction”
refers exclusively to measures that improve the pollution
performance of individual sources, such that all other actions
are ineligible to qualify as the BSER. To be sure, it is perti-
nent to our analysis that EPA has acted consistent with such
a limitation for the frst four decades of the statute's exist-
ence. But the only interpretive question before us, and the
only one we answer, is more narrow: whether the “best sys-
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Gorsuch, J., concurring
tem of emission reduction” identifed by EPA in the Clean
Power
Plan was within the authority granted to the Agency
in Section 111(d) of the Clean Air Act. For the reasons
given, the answer is no.
5
***
Capping carbon dioxide emissions at a level that will force
a nationwide transition away from the use of coal to generate
electricity may be a sensible “solution to the crisis of the
day.” New York v. United States, 505 U. S. 144, 187 (1992).
But it is not plausible that Congress gave EPA the authority
to adopt on its own such a regulatory scheme in Section
111(d). A decision of such magnitude and consequence rests
with Congress itself, or an agency acting pursuant to a clear
delegation from that representative body. The judgment of
the Court of Appeals for the District of Columbia Circuit is
reversed, and the cases are remanded for further proceed-
ings consistent with this opinion.
It is so ordered.
Justice Gorsuch, with whom Justice Alito joins,
concurring.
To resolve today's case the Court invokes the major ques-
tions doctrine. Under that doctrine's terms, administrative
agencies must be able to point to “ `clear congressional au-
thorization' ” when they claim the power to make decisions
of vast “ `economic and political signifcance.' ” Ante, at 721,
723. Like many parallel clear-statement rules in our law,
this one operates to protect foundational constitutional guar-
antees. I join the Court's opinion and write to offer some
additional observations about the doctrine on which it rests.
5
We fnd it odd that the dissent accuses us of champing at the bit to
“constrain EPA's efforts to address climate change,” post, at 756, yet also
chides us for “mak[ing] no effort” to opine—in what would be plain dicta—
on “how far [our] opinion constrain[s] EPA,” post, at 763.
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I
A
One
of the Judiciary's most solemn duties is to ensure that
acts of Congress are applied in accordance with the Constitu-
tion in the cases that come before us. To help fulfll that
duty, courts have developed certain “clear-statement” rules.
These rules assume that, absent a clear statement otherwise,
Congress means for its laws to operate in congruence with
the Constitution rather than test its bounds. In this way,
these clear-statement r u les help cour ts “act as faithful
agents of the Constitution.” A. Barrett, Substantive Can-
ons and Faithful Agency, 90 B. U. L. Rev. 109, 169 (2010)
(Barrett).
Consider some examples. The Constitution prohibits
Congress from passing laws imposing various types of retro-
active liability. See Art. I, § 9; Landgraf v. USI Film Prod-
ucts, 511 U. S. 244, 265–266 (1994). Consistent with this
rule, Chief Justice Marshall long ago advised that “a court
. . . ought to struggle hard against a [statutory] construction
which will, by a retrospective operation, affect the rights of
parties.” United States v. Schooner Peggy, 1 Cranch 103,
110 (1801). Justice Paterson likewise insisted that courts
must interpret statutes to apply only prospectively “unless
they are so clear, strong, and imperative, that no other mean-
ing can be annexed to them.” United States v. Heth, 3
Cranch 399, 413 (1806).
The Constitution also incorporates the doctrine of sover-
eign immunity. See, e. g., Hans v. Louisiana, 134 U. S. 1,
12–17 (1890). To enforce that doctrine, courts have consist-
ently held that “nothing but express words, or an insur-
mountable implication” would justify the conclusion that law-
makers intended to abrogate the States' sovereign immunity.
Chisholm v. Georgia, 2 Dall. 419, 450 (1793) (Iredell, J., dis-
senting); see Seminole Tribe of Fla. v. Florida, 517 U. S. 44,
55 (1996). In a similar vein, Justice Story observed that “[i]t
is a general rule in the interpretation of legislative acts not

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to construe them to embrace the sovereign power or govern-
ment,
unless expressly named or included by necessary im-
plication.” United States v. Greene, 26 F. Cas. 33, 34 (No. 15,
258) (CC Me. 1827).
The major questions doctrine works in much the same way
to protect the Constitution's separation of powers. Ante, at
723. In Article I, “the People” vested “[a]ll” federal “legis-
lative Powers . . . in a Congress.” Preamble; Art. I, § 1.
As Chief Justice Marshall put it, this means that “important
subjects . . . must be entirely regulated by the legislature
itself,” even if Congress may leave the Executive “to act
under such general provisions to fll up the details.” Way-
man v. Southard, 10 Wheat. 1, 42–43 (1825). Doubtless,
what qualifes as an important subject and what constitutes
a detail may be debated. See, e. g., Gundy v. United States,
588 U. S. –––, ––– – ––– (2019) (plurality opinion); id., at –––
– ––– (Gorsuch, J., dissenting). But no less than its rules
against retroactive legislation or protecting sovereign immu-
nity, the Constitution's rule vesting federal legislative power
in Congress is “vital to the integrity and maintenance of the
system of government ordained by the Constitution.” Mar-
shall Field & Co. v. Clark, 143 U. S. 649, 692 (1892).
It is vital because the framers believed that a republic—a
thing of the people—would be more likely to enact just laws
than a regime administered by a ruling class of largely unac-
countable “ministers.” The Federalist No. 11, p. 85 (C. Ros-
siter ed. 1961) (A. Hamilton). From time to time, some have
questioned that assessment.
1
But by vesting the lawmaking
1
For example, Woodrow Wilson famously argued that “popular sover-
eignty” “embarrasse[d]” the Nation because it made it harder to achieve
“executive expertness.” The Study of Administration, 2 Pol. Sci. Q. 197,
207 (1887) (Administration). In Wilson's eyes, the mass of the people
were “selfsh, ignorant, timid, stubborn, or foolish.” Id., at 208. He ex-
pressed even greater disdain for particular groups, defending “[t]he white
men of the South” for “rid[ding] themselves, by fair means or foul, of the
intolerable burden of governments sustained by the votes of ignorant
[African-Americans].” 9 W. Wilson, History of the American People 58
(1918). He likewise denounced immigrants “from the south of Italy and
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power in the people's elected representatives, the Constitu-
ti
on sought to ensure “not only that all power [w]ould be
derived from the people,” but also “that those [e]ntrusted
with it should be kept in dependence on the people.” Id.,
No. 37, at 227 (J. Madison). The Constitution, too, placed its
trust not in the hands of “a few, but [in] a number of hands,”
ibid., so that those who make our laws would better refect
the diversity of the people they represent and have an “im-
mediate dependence on, and an intimate sympathy with, the
people.” Id., No. 52, at 327 (J. Madison). Today, some
might describe the Constitution as having designed the fed-
eral lawmaking process to capture the wisdom of the masses.
See P. Hamburger, Is Administrative Law Unlawful?, 502–
503 (2014).
Admittedly, lawmaking under our Constitution can be dif-
fcult. But that is nothing particular to our time nor any
accident. The framers believed that the power to make new
laws regulating private conduct was a grave one that could,
if not properly checked, pose a serious threat to individual
liberty. See The Federalist No. 48, at 309–312 (J. Madison);
see also id., No. 73, at 441–442 (A. Hamilton). As a result,
the framers deliberately sought to make lawmaking diffcult
by insisting that two houses of Congress must agree to any
new law and the President must concur or a legislative su-
permajority must override his veto.
The diffculty of the design sought to serve other ends too.
By effectively requiring a broad consensus to pass legisla-
tion, the Constitution sought to ensure that any new laws
would enjoy wide social acceptance, proft from input by an
array of different perspectives during their consideration,
and thanks to all this prove stable over time. See id.,
No. 10, at 82–84 (J. Madison). The need for compromise in-
men of the meaner sort out of Hungary and Poland,” who possessed “nei-
ther skill nor energy nor any initiative of quick intelligence.” 5 id., at
212. To Wilson, our Republic “tr[ied] to do too much by vote.” Adminis-
tration 214.
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herent in this design also sought to protect minorities by
ensur
ing that their votes would often decide the fate of pro-
posed legislation—allowing them to wield real power along-
side the majority. See id., No. 51, at 322–324 (J. Madison).
The diffculty of legislating at the federal level aimed as well
to preserve room for lawmaking “by governments more local
and more accountable than a distant federal” authority, Na-
tional Federation of Independent Business v. Sebelius, 567
U. S. 519, 536 (2012) (plurality opinion), and in this way allow
States to serve as “laborator[ies]” for “novel social and eco-
nomic experiments,” New State Ice Co. v. Liebmann, 285
U. S. 262, 311 (1932) (Brandeis, J., dissenting); see J. Sutton,
51 Imperfect Solutions: States and the Making of American
Constitutional Law 11 (2018).
Permitting Congress to divest its legislative power to the
Executive Branch would “dash [this] whole scheme.” De-
partment of Transportation v. Association of American
Railroads, 575 U. S. 43, 61 (2015) (Alito, J., concurring).
Legislation would risk becoming nothing more than the will
of the current President, or, worse yet, the will of unelected
offcials barely responsive to him. See S. Breyer, Making
Our Democracy Work: A Judge's View 110 (2010) (“[T]he
president may not have the time or willingness to review
[agency] decisions”). In a world like that, agencies could
churn out new laws more or less at whim. Intrusions on
liberty would not be diffcult and rare, but easy and profuse.
See The Federalist No. 47, at 303 (J. Madison); id., No. 62, at
378 (J. Madison). Stability would be lost, with vast numbers
of laws changing with every new presidential administration.
Rather than embody a wide social consensus and input from
minority voices, laws would more often bear the support only
of the party currently in power. Powerful special interests,
which are sometimes “uniquely” able to infuence the
agendas of administrative agencies, would fourish while oth-
ers would be left to ever-shifting winds. T. Merrill, Capture
Theory and the Courts: 1967–1983, 72 Chi.-Kent L. Rev. 1039,
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1043 (1997). Finally, little would remain to stop agencies
from
moving into areas where state authority has tradition-
ally predominated. See, e. g., Solid Waste Agency of North-
ern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159,
173–174 (2001) (SWANC). That would be a particularly
ironic outcome, given that so many States have robust non-
delegation doctrines designed to ensure democratic account-
ability in their state lawmaking processes. See R. May, The
Nondelegation Doctrine is Alive and Well in the States, The
Reg. Rev. (Oct. 15, 2020).
B
Much as constitutional rules about retroactive legislation
and sovereign immunity have their corollary clear-statement
rules, Article I's Vesting Clause has its own: the major ques-
tions doctrine. See Gundy, 588 U. S., at ––– – ––– (Gor-
such, J., dissenting). Some version of this clear-statement
rule can be traced to at least 1897, when this Court con-
fronted a case involving the Interstate Commerce Commis-
sion, the federal government's “frst modern regulatory
agency.” S. Dudley, Milestones in the Evolution of the Ad-
ministrative State 3 (Nov. 2020). The ICC argued that Con-
gress had endowed it with the power to set carriage prices
for railroads. See ICC v. Cincinnati, N. O. & T. P. R. Co.,
167 U. S. 479, 499 (1897). The Court deemed that claimed
authority “a power of supreme delicacy and importance,”
given the role railroads then played in the Nation's life. Id.,
at 505. Therefore, the Court explained, a special rule
applied:
“That Congress has transferred such a power to any ad-
ministrative body is not to be presumed or implied from
any doubtful and uncertain language. The words and
phrases effcacious to make such a delegation of power
are well understood, and have been frequently used, and
if Congress had intended to grant such a power to the
[agency], it cannot be doubted that it would have used
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language open to no misconstruction, but clear and di-
rec
t.” Ibid. (emphasis added).
With the explosive growth of the administrative state
since 1970, the major questions doctrine soon took on special
importance.
2
In 1980, this Court held it “unreasonable to
assume” that Congress gave an agency “unprecedented pow-
er[s]” in the “absence of a clear [legislative] mandate.” In-
dustrial Union Dept., AFL–CIO v. American Petroleum In-
stitute, 448 U. S. 607, 645 (plurality opinion). In the years
that followed, the Court routinely enforced “the nondelega-
tion doctrine” through “the interpretation of statutory texts,
and, more particularly, [by] giving narrow constructions to
statutory delegations that might otherwise be thought to be
unconstitutional.” Mistretta v. United States, 488 U. S. 361,
373, n. 7 (1989). In fact, this Court applied the major ques-
tions doctrine in “all corners of the administrative state,”
whether the issue at hand involved an agency's asserted
power to regulate tobacco products, ban drugs used in
physician-assisted suicide, extend Clean Air Act regulations
to private homes, impose an eviction moratorium, or enforce
a vaccine mandate. Ante, at 721; see FDA v. Brown & Wil-
liamson Tobacco Corp., 529 U. S. 120, 160 (2000); Gonzales
v. Oregon, 546 U. S. 243, 267 (2006); Utility Air Regulatory
2
In the 1960s and 1970s, Congress created dozens of new federal admin-
istrative agencies. See W. Howell & D. Lewis, Agencies by Presidential
Design, 64 J. of Politics 1095, 1105 (Nov. 2002). Between 1970 and 1990,
the Code of Federal Regulations grew from about 44,000 pages to about
106,000. See C. DeMuth, Can the Administrative State be Tamed?, 8 J.
Legal Analysis 121, 126 (Feb. 2016). Today, Congress issues “roughly two
hundred to four hundred laws” every year, while “federal administrative
agencies adopt something on the order of three thousand to fve thousand
fnal rules.” R. Cass, Rulemaking Then and Now: From Management to
Lawmaking, 28 Geo. Mason L. Rev. 683, 694 (2021). Beyond that, agencies
regularly “produce thousands, if not millions,” of guidance documents
which, as a practical matter, bind affected parties too. See C. Coglianese,
Illuminating Regulatory Guidance, 9 Mich. J. Env. & Admin. L. 243, 247–
248 (2020).
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Group v. EPA, 573 U. S. 302, 324 (2014); Alabama Assn. of
Rea
ltors v. Department of Health and Human Servs., 594
U. S. –––, ––– (2021) (per curiam); National Federation of
Independent Business v. OSHA, 595 U. S. 109, 117–118
(2022) (per curiam).
3
The Court has applied the major questions doctrine for
the same reason it has applied other similar clear-statement
rules—to ensure that the government does “not inadvert-
ently cross constitutional lines.” Barrett 175. And the
constitutional lines at stake here are surely no less important
than those this Court has long held suffcient to justify paral-
lel clear-statement rules. At stake is not just a question of
retroactive liability or sovereign immunity, but basic ques-
tions about self-government, equality, fair notice, federalism,
and the separation of powers. See Part I–A, supra. The
major questions doctrine seeks to protect against “uninten-
tional, oblique, or otherwise unlikely” intrusions on these in-
terests. NFIB v. OSHA, 595 U. S., at 125 (Gorsuch, J., con-
curring). The doctrine does so by ensuring that, when
agencies seek to resolve major questions, they at least act
with clear congressional authorization and do not “exploit
some gap, ambiguity, or doubtful expression in Congress's
statutes to assume responsibilities far beyond” those the peo-
ple's representatives actually conferred on them. Ibid. As
the Court aptly summarizes it today, the doctrine addresses
“a particular and recurring problem: agencies asserting
highly consequential power beyond what Congress could rea-
sonably be understood to have granted.” Ante, at 724.
3
At times, this Court applied the major questions doctrine more like an
ambiguity canon. See FDA v. Brown & Williamson Tobacco Corp., 529
U. S. 120, 159 (2000). Ambiguity canons merely instruct courts on how to
“choos[e] between equally plausible interpretations of ambiguous text,”
and are thus weaker than clear-statement rules. Barrett 109. But our
precedents have usually applied the doctrine as a clear-statement rule,
and the Court today confrms that is the proper way to apply it. See
ante, at 723–724, 732.
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II
A
Tur
ning from the doctrine's function to its application, it
seems to me that our cases supply a good deal of guidance
about when an agency action involves a major question for
which clear congressional authority is required.
First, this Court has indicated that the doctrine applies
when an agency claims the power to resolve a matter of great
“political signifcance,” NFIB v. OSHA, 595 U. S., at 117 (in-
ternal quotation marks omitted), or end an “earnest and pro-
found debate across the country,” Gonzales, 546 U. S., at 267–
268 (internal quotation marks omitted); see ante, at 721–722.
So, for example, in Gonzales, the Court found that the doc-
trine applied when the Attorney General issued a regulation
that would have effectively banned most forms of physician-
assisted suicide even as certain States were considering
whether to permit the practice. 546 U. S., at 267. And in
NFIB v. OSHA, the Court held the doctrine applied when
an agency sought to mandate COVID–19 vaccines nation-
wide for most workers at a time when Congress and state
legislatures were engaged in robust debates over vaccine
mandates. 595 U. S., at 117; id., at 123 (Gorsuch, J., concur-
ring). Relatedly, this Court has found it telling when Con-
gress has “ `considered and rejected' ” bills authorizing some-
thing akin to the agency's proposed course of action. Ante,
at 724, 731 (quoting Brown & Williamson, 529 U. S., at 144).
That too may be a sign that an agency is attempting to
“ `work [a]round' ” the legislative process to resolve for itself
a question of great political signifcance. NFIB v. OSHA,
595 U. S., at 122 (Gorsuch, J., concurring).
4
4
In the dissent's view, the Court has erred both today and in the past
by pointing to failed legislation. Post, at 778–779 (opinion of Kagan, J.).
But the Court has not pointed to failed legislation to resolve what a duly
enacted statutory text means, only to help resolve the antecedent question
whether the agency's challenged action implicates a major question. The
dissent endorses looking to extrinsic evidence to resolve that question

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Second, this Court has said that an agency must point to
clear
congressional authorization when it seeks to regulate
“ `a signifcant portion of the American economy,' ” ante, at
722 (quoting Utility Air, 573 U. S., at 324), or require “bil-
lions of dollars in spending ” by private persons or entities,
King v. Burwell, 576 U. S. 473, 485 (2015). The Court has
held that regulating tobacco products, eliminating rate regu-
lation in the telecommunications industry, subjecting private
homes to Clean Air Act restrictions, and suspending local
housing laws and regulations can sometimes check this box.
See Brown & Williamson, 529 U. S., at 160; MCI Telecom-
munications Corp. v. American Telephone & Telegraph Co.,
512 U. S. 218, 231 (1994) (MCI); Utility Air, 573 U. S., at 324;
Alabama Assn. of Realtors, 594 U. S., at –––.
Third, this Court has said that the major questions doc-
trine may apply when an agency seeks to “intrud[e] into an
area that is the particular domain of state law.” Ibid. Of
course, another longstanding clear-statement rule—the fed-
eralism canon—also applies in these situations. To preserve
the “proper balance between the States and the Federal Gov-
ernment” and enforce limits on Congress's Commerce Clause
power, courts must “ `be certain of Congress' intent' ” before
fnding that it “legislate[d] in areas traditionally regulated
by the States.” Gregory v. Ashcroft, 501 U. S. 452, 459–460
(1991). But unsurprisingly, the major questions doctrine
and the federalism canon often travel together. When an
agency claims the power to regulate vast swaths of Ameri-
can life, it not only risks intruding on Congress's power, it
also risks intruding on powers reserved to the States. See
SWANC, 531 U. S., at 162, 174.
While this list of triggers may not be exclusive, each of
the signs the Court has found signifcant in the past is pres-
ent here, making this a relatively easy case for the doctrine's
application. The EPA claims the power to force coal and
too. See post, at 772–773 (discussing whether there is a “mismatch” be-
tween an agency's expertise and its challenged action).
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gas-fred power plants “to cease [operating] altogether.”
An
te, at 728. Whether these plants should be allowed to
operate is a question on which people today may disagree,
but it is a question everyone can agree is vitally important.
See ante, at 728–729. Congress has debated the matter fre-
quently. Ibid.; see generally Climate Change, The History
of a Consensus and the Causes of Inaction, Hearing before
the Subcommittee on Environment of the House Committee
on Oversight and Reform, 116th Cong., 1st Sess., pt. I (2019).
And so far it has “conspicuously and repeatedly declined” to
adopt legislation similar to the Clean Power Plan (CPP).
Ante, at 724; see American Lung Assn. v. EPA, 985 F. 3d
914, 998, n. 19 (CADC 2021) (Walker, J., concurring in part,
concurring in judgment in part, and dissenting in part) (cata-
loguing failed legislative proposals); cf. Brown & William-
son, 529 U. S., at 144. It seems that fact has frustrated the
Executive Branch and led it to attempt its own regulatory
solution in the CPP. See 985 F. 3d, at 998, n. 20 (President
stating that “ `if Congress won't act soon . . . I will' ”); cf.
United States Telecom Assn. v. FCC, 855 F. 3d 381, 423–
424 (CADC 2017) (Kavanaugh, J., dissenting from denial of
rehearing en banc) (noting a “President's intervention [may]
underscor[e] the enormous signifcance” of a regulation).
Other suggestive factors are present too. “The electric
power sector is among the largest in the U. S. economy, with
links to every other sector.” N. Richardson, Keeping Big
Cases From Making Bad Law: The Resurgent “Major Ques-
tions” Doctrine, 49 Conn. L. Rev. 355, 388 (2016). The Exec-
utive Branch has acknowledged that its proposed rule would
force an “aggressive transformation” of the electricity sector
through “ transiti on to zero-carbon renewable energ y
sources.” White House Fact Sheet, App. in American Lung
Assn. v. EPA, No. 19–1140 (CADC), pp. 2076–2077. The Ex-
ecutive Branch has also predicted its rule would force dozens
of power plants to close and eliminate thousands of jobs by
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Power Plan Final Rule 3–27, 3–30, 3–33, 6–25 (Oct. 23, 2015).
And
industry analysts have estimated the CPP would cause
consumers' electricity costs to rise by over $200 billion. See
National Mining Assn., EPA's Clean Power Plan: An Eco-
nomic Impact Analysis 2, 4 (2015). Finally, the CPP unques-
tionably has an impact on federalism, as “the regulation of
utilities is one of the most important of the functions tradi-
tionally associated with the police power of the States.” Ar-
kansas Elec. Cooperative Corp. v. Arkansas Pub. Serv.
Comm'n, 461 U. S. 375, 377 (1983). None of this is to say
the policy the agency seeks to pursue is unwise or should not
be pursued. It is only to say that the agency seeks to re-
solve for itself the sort of question normally reserved for
Congress. As a result, we look for clear evidence that the
people's representatives in Congress have actually afforded
the agency the power it claims.
B
At this point, the question becomes what qualifes as a
clear congressional statement authorizing an agency's action.
Courts have long experience applying clear-statement rules
throughout the law, and our cases have identifed several tell-
ing clues in this context too.
First, courts must look to the legislative provisions on
which the agency seeks to rely “ `with a view to their place
in the overall statutory scheme.' ” Brown & Williamson,
529 U. S., at 133. “[O]blique or elliptical language” will not
supply a clear statement. Ante, at 723; see Spector v. Norwe-
gian Cruise Line Ltd., 545 U. S. 119, 139 (2005) (plurality
opinion) (cautioning against reliance on “broad or general
language”). Nor may agencies seek to hide “elephants in
mouseholes,” Whitman v. American Trucking Assns., Inc.,
531 U. S. 457, 468 (2001), or rely on “gap fller” provisions,
ante, at 724. So, for example, in MCI this Court rejected the
Federal Communication Commission's attempt to eliminate
rate regulation for the telecommunications industry based on
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a “subtle” provision that empowered the FCC to “ `modify' ”
rates.
512 U. S., at 231. In Brown & Williamson, the
Court rejected the Food and Drug Administration's attempt
to regulate cigarettes based a “cryptic” statutory provision
that granted the agency the power to regulate “drugs” and
“devices.” 529 U. S., at 126, 156, 160. And in Gonzales, the
Court doubted that Congress gave the Attorney General
“ broad and unusua l author ity” to reg u late dr ugs for
physician-assisted suicide through “oblique” statutory lan-
guage. 546 U. S., at 267.
Second, courts may examine the age and focus of the stat-
ute the agency invokes in relation to the problem the agency
seeks to address. As the Court puts it today, it is unlikely
that Congress will make an “[e]xtraordinary gran[t] of regu-
latory authority” through “vague language” in “ `a long-
extant statute.' ” Ante, at 723–724 (quoting Utility Air, 573
U. S., at 324). Recently, too, this Court found a clear state-
ment lacking when OSHA sought to impose a nationwide
COVID–19 vaccine mandate based on a statutory provision
that was adopted 40 years before the pandemic and that fo-
cused on conditions specifc to the workplace rather than a
problem faced by society at large. See NFIB v. OSHA, 595
U. S., at 123 (Gorsuch, J., concurring). Of course, some-
times old statutes may be written in ways that apply to
new and previously unanticipated situations. See Sedima,
S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). But an
agency's attempt to deploy an old statute focused on one
problem to solve a new and different problem may also be
a warning sign that it is acting without clear congressional
authority. See ante, at 722–723.
Third, courts may examine the agency's past interpreta-
tions of the relevant statute. See ante, at 724–725. A “con-
temporaneous” and long-held Executive Branch interpreta-
tion of a statute is entitled to some weight as evidence of
the statute's original charge to an agency. United States v.
Philbrick, 120 U. S. 52, 59 (1887). Conversely, in NFIB v.
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OSHA, the Court found it “telling that OSHA, in its half
century
of existence, ha[d] never before adopted a broad pub-
lic health regulation” under the statute that the agency
sought to invoke as authority for a nationwide vaccine man-
date. 595 U. S., at 119; ante, at 722; see also Brown & Wil-
liamson, 529 U. S., at 158–159 (noting that for decades the
FDA had said it lacked statutory power to regulate ciga-
rettes). As the Court states today, “ `the want of [an] asser-
tion of power by those who presumably would be alert' ” to
it is “ `signifcant in determining whether such power was
actually conferred.' ” Ante, at 725. When an agency claims
to have found a previously “unheralded power,” its assertion
generally warrants “a measure of skepticism.” Utility Air,
573 U. S., at 324.
Fourth, skepticism may be merited when there is a mis-
match between an agency's challenged action and its con-
gressionally assigned mission and expertise. Ante, at 729.
As the Court explains, “[w]hen an agency has no comparative
expertise in making certain policy judgments, . . . Congress
presumably would not task it with doing so.” Ibid. (internal
quotation marks and alterations omitted). So, for example,
in Alabama Assn. of Realtors, this Court rejected an at-
tempt by a public health agency to regulate housing. 594
U. S., at –––. And in NFIB v. OSHA, the Court rejected an
effort by a workplace safety agency to ordain “broad public
health measures” that “f[ell] outside [its] sphere of exper-
tise.” 595 U. S., at 118.
5
5
The dissent not only agrees that a mismatch between an agency's ex-
pertise and its challenged action is relevant to the major questions doc-
trine analysis; the dissent suggests that such a mismatch is necessary to
the doctrine's application. See post, at 765–767. But this Court has never
taken that view. See, e. g., ICC v. Cincinnati, N. O. & T. P. R. Co., 167
U. S. 479, 505 (1897) (interstate commerce agency regulating interstate
railroad commerce); Industrial Union Dept., AFL–CIO v. American Pe-
troleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion) (workplace
safety agency regulating workplace carcinogens); Brown & Williamson,
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Asking these questions again yields a clear answer in our
case
. See ante, at 732–735. As the Court details, the agency
before us cites no specifc statutory authority allowing it to
transform the Nation's electrical power supply. See ante, at
732. Instead, the agency relies on a rarely invoked statu-
tory provision that was passed with little debate and has
been characterized as an “obscure, never-used section of the
law.” Ante, at 711 (internal quotation marks omitted).
Nor has the agency previously interpreted the relevant pro-
vision to confer on it such vast authority; there is no original,
longstanding, and consistent interpretation meriting judicial
respect. See ante, at 724–726. Finally, there is a “mis-
match” between the EPA's expertise over environmental
matters and the agency's claim that “Congress implicitly
tasked it, and it alone, with balancing the many vital consid-
erations of national policy implicated in deciding how Ameri-
cans will get their energy.” Ante, at 729. Such a claimed
power “requires technical and policy expertise not tradition-
ally needed in [the EPA's] regulatory development.” Ibid.
(internal quotation marks omitted). Again, in observing
this much, the Court does not purport to pass on the wisdom
of the agency's course. It acknowledges only that agency
offcials have sought to resolve a major policy question with-
out clear legislative authorization to do so.
III
In places, the dissent seems to suggest that we should not
be unduly “ `concerned' ” with the Constitution's assignment
of the legislative power to Congress. Post, at 780 (opinion
of Kagan, J.). Echoing Woodrow Wilson, the dissent seems
to think “a modern Nation” cannot afford such sentiments.
Post, at 780–782. But recently, our dissenting colleagues ac-
knowledged that the Constitution assigns “all legislative
529 U. S., at 159–160 (drug agency regulating tobacco); King v. Burwell,
576 U. S. 473, 485–486 (2015) (tax agency administering tax credits).
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Powers” to Congress and “bar[s their] further delegation.”
G
undy, 588 U. S., at ––– (plurality opinion of Kagan, J.) (in-
ternal quotation marks and alteration omitted). To be sure,
in that case we disagreed about the exact nature of the “non-
delegation inquiry” courts must employ to vindicate the Con-
stitution. Id., at –––. But like Chief Justice Marshall, we
all recognized that the Constitution does impose some limits
on the delegation of legislative power. See ibid.; Wayman,
10 Wheat., at 42–43. And while we all agree that adminis-
trative agencies have important roles to play in a modern
nation, surely none of us wishes to abandon our Republic's
promise that the people and their representatives should
have a meaningful say in the laws that govern them. Cf.
Rucho v. Common Cause, 588 U. S. –––, ––– (2019) (Kagan,
J., dissenting) (“Republican liberty demands not only, that
all power should be derived from the people; but that those
entrusted with it should be kept in dependence on the peo-
ple” (internal quotation marks and alteration omitted)).
6
6
In the course of its argument, the dissent leans heavily on two recent
academic articles. Post, at 780. But if a battle of law reviews were the
order of the day, it might be worth adding to the reading list. See, e. g.,
I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1493–1494
(2021); D. Candeub, Preference and Administrative Law, 72 Admin. L. Rev.
607, 614–628 (2020); P. Hamburger, Delegating or Divesting?, 115 Nw. L.
Rev. Online 88, 91–110 (2020); M. McConnell, The President Who Would
Not Be King 326–335 (2020); A. Gordon, Nondelegation, 12 N. Y. U. J. L. &
Liberty 718, 719 (2019); R. Cass, Delegation Reconsidered: A Delegation
Doctrine for the Modern Administrative State, 40 Harv. J. L. & Pub. Pol'y
147, 155–161 (2017); G. Lawson & G. Seidman, “A Great Power of Attor-
ney:” Understanding the Fiduciary Constitution 104–129 (2017); P. Ham-
burger, Is Administrative Law Unlawful?, 377–402 (2014); L. Alexander &
S. Prakash, Reports of the Nondelegation Doctrine's Death are Greatly
Exaggerated, 70 U. Chi. L. Rev. 1297, 1298–1299 (2003); G. Lawson, Dele-
gation and Original Meaning, 88 Va. L. Rev. 327, 335–343 (2002); D.
Schoenbrod, The Delegation Doctrine: Could the Court Give It Sub-
stance?, 83 Mich. L. Rev. 1223, 1252–1255, 1260–1261 (1985); see generally
P. Wallison & J. Yoo, The Administrative State Before the Supreme Court:
Perspectives on the Nondelegation Doctrine (2022).
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So what is our real point of disagreement? The dissent
next
suggests that the Court strays from its commitment to
textualism by relying on a clear-statement rule (the major
questions doctrine) to resolve today's case. Post, at 779.
But our law is full of clear-statement rules and has been
since the founding. Our colleagues do not dispute the point.
In fact, they have regularly invoked many of these rules.
7
If that's not the problem, perhaps the dissent means to
suggest that the major questions doctrine does not belong on
the list of our clear-statement rules. At times, the dissent
appears to dismiss the doctrine as a “get-out-of-text free
car[d].” Ibid. The dissent even seems to suggest that the
doctrine could threaten “the safety and effcacy of medica-
tions” or lead to “the routine adulteration of food.” Post, at
782. But then again, the dissent also acknowledges that the
major questions doctrine should “sensibl[y]” apply in at least
some situations. Post, at 765–766. The dissent even favor-
ably highlights one application of the doctrine that our col-
leagues criticized less than a year ago. See post, at 769 (cit-
ing Alabama Assn. of Realtors, 594 U. S. –––). And, of
course, our colleagues have joined other applications of the
major questions doctrine in the past. See, e. g., King, 576
U. S., at 485–486; Gonzales, 546 U. S., at 267–268. Nor does
the dissent really seem to dispute that a major question is
7
See, e. g., United States v. Washington, 596 U. S. 832, 839–840 (2022)
(intergovernmental immunity); Rehaif v. United States, 588 U. S. –––, –––
(2019) (mens rea); Michigan v. Bay Mills Indian Community, 572 U. S.
782, 790–791 (2014) (sovereign immunity); Vartelas v. Holder, 566 U. S.
257, 261, 266–267 (2012) (retroactivity); Gonzalez v. Thaler, 565 U. S. 134,
141–142 (2012) (presumption against rule being jurisdictional); Smith v.
Bayer Corp., 564 U. S. 299, 307 (2011) (presumption that federal injunc-
tions don't bar parallel state proceedings); Fowler v. United States, 563
U. S. 668, 677 (2011) (federalism canon); Kucana v. Holder, 558 U. S. 233,
237 (2010) (presumption in favor of judicial review); Holland v. Florida,
560 U. S. 631, 645–646 (2010) (presumption in favor of equitable tolling);
Hamilton v. Lanning, 560 U. S. 505, 517 (2010) (presumption that Bank-
ruptcy Code didn't erode past practice).

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at stake in this case. As the dissent observes, the agency's
cha
llenged action before us concerns one of “the greatest . . .
challenge[s] of our time.” Post, at 772. If this case does
not implicate a “question of deep economic and political sig-
nifcance,” King, 576 U. S., at 486 (internal quotation marks
omitted), it is unclear what might.
8
In the end, our disagreement really seems to center on a
difference of opinion about whether the statute at issue here
clearly authorizes the agency to adopt the CPP. The dissent
even complains that I have failed to conduct an exhaustive
analysis of the relevant statutory language. See post, at
779–780, n. 8. But in this concurrence, I have sought to pro-
vide some observations about the underlying doctrine on
which today's decision rests. On the merits of the case be-
fore us, I join the Court's opinion, which comprehensively
sets forth why Congress did not clearly authorize the EPA
to engage in a “generation shifting approach” to the produc-
tion of energy in this country. Ante, at 732. In reaching
its judgment, the Court hardly professes to “appoin[t] itself ”
“the decision-maker on climate policy.” Post, at 784. The
Court acknowledges only that, under our Constitution, the
people's elected representatives in Congress are the deci-
sionmakers here—and they have not clearly granted the
agency the authority it claims for itself. Ante, at 735.
*
When Congress seems slow to solve problems, it may be
only natural that those in the Executive Branch might seek
8
The dissent seeks to invoke Justice Scalia as authority against the
major questions doctrine. See post, at 782–783. But the dissent neglects
to mention that Justice Scalia authored or joined several of the Court's
major questions decisions, including Brown & Williamson, which the dis-
sent describes as the “key case.” Post, at 767 (citing 529 U. S. 120); see
also Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468
(2001); Utility Air, 573 U. S., at 307; A. Scalia, A Note on the Benzene
Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980,
pp. 27–28.
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to take matters into their own hands. But the Constitution
does
not authorize agencies to use pen-and-phone regulations
as substitutes for laws passed by the people's representa-
tives. In our Republic, “[i]t is the peculiar province of the
legislature to prescribe general rules for the government of
society.” Fletcher v. Peck, 6 Cranch 87, 136 (1810). Be-
cause today's decision helps safeguard that foundational con-
stitutional promise, I am pleased to concur.
Justice Kagan, with whom Justice Breyer and Jus-
tice Sotomayor join, dissenting.
Today, the Court strips the Environmental Protection
Agency (EPA) of the power Congress gave it to respond to
“the most pressing environmental challenge of our time.”
Massachusetts v. EPA, 549 U. S. 497, 505 (2007).
Climate change's causes and dangers are no longer subject
to ser i ous doubt. Moder n science is “unequivocal that
human infuence”—in particular, the emission of greenhouse
gases like carbon dioxide—“has warmed the atmosphere,
ocean and land. ” Intergovernmental Panel on Climate
Change, Sixth Assessment Report, The Physical Science
Basis: Headline Statements 1 (2021). The Earth is now war-
mer than at any time “in the history of modern civilization,”
with the six warmest years on record all occurring in the
last decade. U. S. Global Change Research Program, Fourth
National Climate Assessment, Vol. I, p. 10 (2017); Brief for
Climate Scientists as Amici Curiae 8. The rise in tempera-
tures brings with it “increases in heat-related deaths,”
“coastal inundation and erosion,” “more frequent and intense
hurricanes, foods, and other extreme weather events,”
“drought,” “destruction of ecosystems,” and “potentially sig-
nifcant disruptions of food production.” American Elec.
Power Co. v. Connecticut, 564 U. S. 410, 417 (2011) (internal
quotation marks omitted). If the current rate of emissions
continues, children born this year could live to see parts of
the Eastern seaboard swallowed by the ocean. See Brief
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for Climate Scientists as Amici Curiae 6. Rising waters,
scorch
ing heat, and other severe weather conditions could
force “mass migration events[,] political crises, civil unrest,”
and “even state failure.” Dept. of Defense, Climate Risk
Analysis 8 (2021). And by the end of this century, climate
change could be the cause of “4.6 million excess yearly
deaths.” See R. Bressler, The Mortality Cost of Carbon, 12
Nature Communications 4467, p. 5 (2021).
Congress charged EPA with addressing those potentially
catastrophic harms, including through regulation of fossil-
fuel-fred power plants. Section 111 of the Clean Air Act
directs EPA to regulate stationary sources of any substance
that “causes, or contributes signifcantly to, air pollution” and
that “may reasonably be anticipated to endanger public
health or welfare.” 42 U. S. C. § 7411(b)(1)(A). Carbon di-
oxide and other greenhouse gases ft that description. See
American Elec. Power, 564 U. S., at 416–417; Massachusetts,
549 U. S., at 528–532. EPA thus serves as the Nation's “pri-
mary regulator of greenhouse gas emissions.” American
Elec. Power, 564 U. S., at 428. And among the most signif-
cant of the entities it regulates are fossil-fuel-fred (mainly
coal- and natural-gas-fred) power plants. Today, those
electricity-producing plants are responsible for about one
quarter of the Nation's greenhouse gas emissions. See
EPA, Sources of Greenhouse Gas Emissions (Apr. 14, 2022),
https : / / www.epa.gov/ghgemissions/sources-greenhouse-gas-
emissions. Curbing that output is a necessary part of any
effective approach for addressing climate change.
To carry out its Section 111 responsibility, EPA issued the
Clean Power Plan in 2015. The premise of the Plan—which
no one really disputes—was that operational improvements
at the individual-plant level would either “lead to only small
emission reductions” or would cost far more than a readily
available regulatory alternative. 80 Fed. Reg. 64727–64728
(2015). That alternative—which fossil-fuel-fred plants
were “already using to reduce their [carbon dioxide] emis-
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sions” in “a cost-effective manner”—is called generation
sh
ifting. Id., at 64728, 64769. As the Court explains, the
term refers to ways of shifting electricity generation from
higher emitting sources to lower emitting ones—more spe-
cifcally, from coal-fred to natural-gas-fred sources, and from
both to renewable sources like solar and wind. See ante,
at 712. A power company (like the many supporting EPA
here) might divert its own resources to a cleaner source, or
might participate in a cap-and-trade system with other com-
panies to achieve the same emissions-reduction goals.
This Court has obstructed EPA's effort from the begin-
ning. Right after the Obama administration issued the
Clean Power Plan, the Court stayed its implementation.
That action was unprecedented: Never before had the Court
stayed a regulation then under review in the lower courts.
See Reply Brief for 29 States and State Agencies in
No. 15A773, p. 33 (conceding the point). The effect of the
Court's order, followed by the Trump administration's repeal
of the rule, was that the Clean Power Plan never went into
effect. The ensuing years, though, proved the Plan's moder-
ation. Market forces alone caused the power industry to
meet the Plan's nationwide emissions target—through ex-
actly the kinds of generation shifting the Plan contemplated.
See 84 Fed. Reg. 32561–32562 (2019); Brief for United States
47. So by the time yet another President took offce, the
Plan had become, as a practical matter, obsolete. For that
reason, the Biden administration announced that, instead of
putting the Plan into effect, it would commence a new rule-
making. Yet this Court determined to pronounce on the le-
gality of the old rule anyway. The Court may be right that
doing so does not violate Article III mootness rules (which
are notoriously strict). See ante, at 718–720. But the
Court's docket is discretionary, and because no one is now sub-
ject to the Clean Power Plan's terms, there was no reason to
reach out to decide this case. The Court today issues what
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rule EPA is considering. That new rule will be subject any-
way
to immediate, pre-enforcement judicial review. But
this Court could not wait—even to see what the new rule
says—to constrain EPA's efforts to address climate change.
The limits the majority now puts on EPA's authority fy in
the face of the statute Congress wrote. The majority says
it is simply “not plausible” that Congress enabled EPA to
regulate power plants' emissions through generation shift-
ing. Ante, at 735. But that is just what Congress did when
it broadly authorized EPA in Section 111 to select the “best
system of emission reduction” for power plants. § 7411(a)
(1). The “best system” full stop—no ifs, ands, or buts of any
kind relevant here. The parties do not dispute that genera-
tion shifting is indeed the “best system”—the most effective
and effcient way to reduce power plants' carbon dioxide
emissions. And no other provision in the Clean Air Act sug-
gests that Congress meant to foreclose EPA from selecting
that system; to the contrary, the Plan's regulatory approach
fts hand-in-glove with the rest of the statute. The majori-
ty's decision rests on one claim alone: that generation shift-
ing is just too new and too big a deal for Congress to have
authorized it in Section 111's general terms. But that is
wrong. A key reason Congress makes broad delegations
like Section 111 is so an agency can respond, appropriately
and commensurately, to new and big problems. Congress
knows what it doesn't and can't know when it drafts a stat-
ute; and Congress therefore gives an expert agency the
power to address issues—even signifcant ones—as and when
they arise. That is what Congress did in enacting Section
111. The majority today overrides that legislative choice.
In so doing, it deprives EPA of the power needed—and the
power granted—to curb the emission of greenhouse gases.
I
The Clean Air Act was major legislation, designed to deal
with a major public policy issue. As Congress explained, its

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goal was to “speed up, expand, and intensify the war against
air
pollution” in all its forms. H. R. Rep. No. 91–1146, p. 1
(1970). Or as this Court similarly recognized, the Act was
a “drastic remedy to what was perceived as a serious and
otherwise uncheckable problem.” Union Elec. Co. v. EPA,
427 U. S. 246, 256 (1976). The Act, as the majority de-
scribes, established three major regulatory programs to con-
trol air pollution from stationary sources like power plants.
See ante, at 707–711. The National Ambient Air Quality
Standards (NAAQS) and Hazardous Air Pollutants (HAP)
programs prescribe standards for specifed pollutants, not
i ncludi ng carbon di oxide. Sec ti on 111's New Source
Performance Standards program provides an additional tool
for regulating emissions from categories of stationary
sources deemed to contribute signifcantly to pollution. As
applied to existing (not new) sources, the program man-
dates—via Section 111(d)—that EPA set emissions levels for
pollutants not covered by the NAAQS or HAP programs,
including carbon dioxide.
Section 111(d) thus ensures that EPA regulates existing
power plants' emissions of all pollutants. When the pollut-
ant at issue falls within the NAAQS or HAP programs, EPA
need do no more. But when the pollutant falls outside those
programs, Section 111(d) requires EPA to set an emissions
level for currently operating power plants (and other station-
ary sources). That means no pollutant from such a source
can go unregulated: As the Senate Report explained, Section
111(d) guarantees that “there should be no gaps in control
activities pertaining to stationary source emissions that pose
any signifcant danger to public health or welfare.” S. Rep.
No. 91–1196, p. 20 (1970). Refecting that language, the ma-
jority calls Section 111(d) a “gap-fller.” Ante, at 710. It
might also be thought of as a backstop or catch-all provision,
protecting against pollutants that the NAAQS and HAP
programs let go by. But the section is not, as the majority
further claims, an “ancillary provision” or a statutory “back-
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water.” Ante, at 724, 730. That characterization is a non-
sequitur
. That something is a backstop does not make it a
backwater. Even if they are needed only infrequently, see
ante, at 710–711, 724–725, backstops can perform a critical
function—and this one surely does. Again, Section 111(d)
tells EPA that when a pollutant—like carbon dioxide—is not
regulated through other programs, EPA must undertake a
further regulatory effort to control that substance's emission
from existing stationary sources. In that way, Section
111(d) operates to ensure that the Act achieves comprehen-
sive pollution control.
Section 111 describes the prescribed regulatory effort in
expansive terms. EPA must set for the relevant source
(here, fossil-fuel-fred power plants) and the relevant pol-
lut ant ( here, carbon di oxide) an emissi on level—more
particularly,
“the degree of emission limitation achievable through
the application of the best system of emission reduction
which (taking into account the cost of achieving such
reduction and any nonair quality health and environ-
mental impact and energy requirements) the [EPA] Ad-
ministrator determines has been adequately demon-
strated.” § 7411(a)(1).
To take that language apart a bit, the provision instructs
EPA to decide upon the “best system of emission reduction
which . . . has been adequately demonstrated.” The provi-
sion tells EPA, in making that determination, to take account
of both costs and varied “nonair” impacts (on health, the en-
vironment, and the supply of energy). And the provision
fnally directs EPA to set the particular emissions limit
achievable through use of the demonstrated “best system.”
Taken as a whole, the section provides regulatory fexibility
and discretion. It imposes, to be sure, meaningful con-
straints: Take into account costs and nonair impacts, and
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make sure the best system has a proven track record.
1
But
the
core command—go fnd the best system of emission re-
duction—gives broad authority to EPA.
If that fexibility is not apparent on the provision's face,
consider some dictionary defnitions—supposedly a staple of
this Court's supposedly textualist method of reading stat-
utes. A “system” is “a complex unity formed of many often
diverse parts subject to a common plan or serving a common
purpose.” Webster's Third New International Dictionary
2322 (1971). Or again: a “system” is “[a]n organized and co-
ordinated method; a procedure.” American Heritage Dic-
tionary 1768 (5th ed. 2018). The majority complains that a
similar defnition—cited to the Solicitor General's brief but
originally from another dictionary—is just too darn broad.
Ante, at 732; see Brief for United States 31 (quoting Web-
ster's New International Dictionary 2562 (2d ed. 1959)).
“[A]lmost anything ” capable of reducing emissions, the ma-
jority says, “could constitute such a `system' ” of emission
reduction. Ante, at 732. But that is rather the point.
Congress used an obviously broad word (though surround-
ing it with constraints, see supra, at 758) to give EPA
lots of latitude in deciding how to set emissions limits. And
contra the majority, a broad term is not the same thing as
a “vague” one. Ante, at 723, 724, 732. A broad term is
comprehensive, extensive, wide-ranging; a “vague” term is
unclear, ambiguous, hazy. (Once again, dictionaries would
tell the tale.) So EPA was quite right in stating in the
Clean Power Plan that the “[p]lain meaning ” of the term
“system” in Section 111 refers to “a set of measures that
work together to reduce emissions.” 80 Fed. Reg. 64762.
Another of this Court's opinions, involving a matter other
1
Those constraints have had real effect: They have led EPA in prior
rulemakings to exclude a number of pollution-control measures from the
“best system of emission reduction.” See Brief for United States 49 (col-
lecting citations).
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than the bogeyman of environmental regulation, might have
stopped
there.
For generation shifting fts comfortably within the conven-
tional meaning of a “system of emission reduction.” Con-
sider one of the most common mechanisms of generation
shifting: the use of a cap-and-trade scheme. Here is how
the majority describes cap and trade: “Under such a scheme,
sources that receive a reduction in their emissions can sell a
credit representing the value of that reduction to others, who
are able to count it toward their own applicable emissions
caps.” Ante, at 713. Does that sound like a “system” to
you? It does to me too. And it also has to this Court. In
the past, we have explained that “[t]his type of `cap-and-
trade' system cuts costs while still reducing pollution to tar-
get levels.” EPA v. EME Homer City Generation, L. P.,
572 U. S. 489, 503, n. 10 (2014) (emphasis added). So what
does the majority mean when it says that “[a]s a matter of
defnitional possibilities, generation shifting can be de-
scribed as a `system' ”? Ante, at 732 (emphasis added; cita-
tion and some internal quotation marks omitted). Rarely
has a statutory term so clearly applied.
Other statutory provisions confrm the point. The Clean
Air Act's acid rain provision, for example, describes a cap-
and-trade program as an “emission allocation and transfer
system.” § 7651(b) (emphasis added). So a “system,” ac-
cording to the statute's own usage, includes the kind of cap-
and-trade mechanism that the Clean Power Plan relied on.
And in a somewhat different way, the NAAQS provision
shows that Section 111 encompasses such a regulatory tech-
nique. Under that provision, cap-and-trade schemes qualify
as “control measures, means, or techniques” that state plans
may use to reduce emissions. § 7410(a)(2)(A). That lan-
guage, of course, does not use the word “system.” But in
specifying that cap and trade is allowable under the NAAQS
program, the provision supports the same conclusion here—
because Section 111 directs EPA to use “a procedure similar
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to that provided by [the NAAQS].” § 7411(d)(1). The ma-
jor
ity discounts the relevance of both those provisions on the
ground that they contemplate trading systems only “as a
means of complying with an already established emissions
limit.” Ante, at 733 (emphasis in original). That is a dis-
tinction, to be sure. But to begin, it is far less of one than
the majority thinks: In arguing that EPA's claim of authority
here would allow it to take the emissions limit as low as it
wants, the majority ignores the varied constraints surround-
ing the “best system” language. See supra, at 758. And
still more important for interpretive purposes, the distinc-
tion appears only in the majority's opinion, not in any statu-
tory language. That text, to the contrary, says to EPA: Do
as you would do under the NAAQS and Acid Rain pro-
grams—go ahead and use cap and trade.
There is also a fipside point: Congress declined to include
in Section 111 the restrictions on EPA's authority contained
in other Clean Air Act provisions. Most relevant here, quite
a number of statutory sections confne EPA's emissions-
reduction efforts to technolog ical controls— essentia lly,
equipment or processes that can be put into place at a partic-
ular facility. See ante, at 708 (describing those controls).
So, for example, one provision tells EPA to set standards
“reflect[ing] the greatest degree of emissi on reduc ti on
ach ievable through the appl icati on of technolog y. ”
§ 7521(a)(3)(A)(i). Others direct the use of the “best avail-
able retroft technology,” or the “best available control tech-
nology,” or the “maximum achievable control technology.”
§§ 7491(b)(2)(A), (g)(2), 7475(a)(4), 7479(3), 7412(g)(2). There
are still more. See, e. g., §§ 7411(h), 7511a(c)(7), 7651f(b)(2).
None of those provisions would allow EPA to set emissions
limits based on generation shifting, as the Agency acknowl-
edges. See Brief for United States 32–33. But nothing like
the language of those provisions is included in Section 111.
That matters under normal rules of statutory interpretation.
As Justice Scalia once wrote for the Court: “We do not lightly
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assume that Congress has omitted from its adopted text re-
quirements
that it nonetheless intends to apply, and our re-
luctance is even greater when Congress has shown elsewhere
in the same statute that it knows how to make such a re-
quirement manifest.” Jama v. Immigration and Customs
Enforcement, 543 U. S. 335, 341 (2005).
Statutory history serves only to pile on: It shows that Con-
gress has specifcally declined to restrict EPA to technology-
based controls in its regulation of existing stationary
sources. The key moment came in 1977, when Congress
amended Section 111 to distinguish between new sources and
existing ones. For new sources, EPA could select only the
“best technological system of continuous emission reduc-
tion.” Clean Air Act Amendments, § 109(c)(1)(A), 91 Stat.
700 (emphasis added). But for existing sources, the word
“technological” was struck out: EPA could select the “best
system of continuous emissi on reducti on. ” Ib i d. The
House Report emphasized Congress's deliberate choice:
Whereas the standards set for new sources were to be based
on “the best technological” controls, the “standards adopted
for existing sources” were “to be based on available means
of emission control (not necessarily technological).” H. R.
Rep. No. 95–564, p. 129 (1977). The Report did not further
explain the distinction. But presumably Congress gave
EPA more fexibility over existing plants because imposing
technological controls on old facilities is often not cost-
effective.
2
Thirteen years later, Congress followed up by
2
The majority offers a theory for why Congress insisted on a technologi-
cal system for new sources: It was, the majority says, to prevent EPA's
use of a particular kind of technological system (involving fuel switching)
to achieve emissions reductions. See ante, at 726–727, n. 2. To begin
with: I don't see how requiring EPA to select among technological systems
precludes it from picking what the majority agrees is one such measure.
See ante, at 708, 726–727, n. 2. But more important, I can't see why
the majority's explanation matters. Let's assume the majority is right
about Congress's motive. The key point remains the same: Whatever that
motive, Congress's instruction to use technological systems applied only
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deleting from Section 111 the technological limitation apply-
i
ng to new facilities. See Clean Air Act Amendments of
1990, § 403(a), 104 Stat. 2631. Once again, then, Congress
faced a choice: confne EPA to technological controls, or not.
And replicating its earlier action for existing sources, Con-
gress chose not.
The majority breezes past that congressional choice on the
ground that today's opinion does not resolve whether EPA
can regulate in some non-technological ways; instead, the
opinion says only that the Clean Power Plan goes too far.
See ante, at 734–735. That is a puzzling point. As an initial
matter, it recharacterizes what this case has always been
about. The Trump administration repealed the Clean
Power Plan for one central reason: because (in its view) Sec-
tion 111 confnes EPA to facility-specifc, technological meas-
ures. See 84 Fed. Reg. 32523–32529. In reviewing that re-
peal, the court below thus addressed that limit alone. See
American Lung Assn. v. EPA, 985 F. 3d 914, 944 (CADC
2021). So add to the oddity of the Court's declaring a de-
funct regulation unlawful, see supra, at 755–756, the irregu-
larity of its suggesting some kind of non-technological limit
that no one (not EPA, not the parties, not the court below)
has ever considered. More important here, both the nature
and the statutory basis of that limit are left a mystery. If
the majority is not distinguishing between technological con-
trols and all others, what is it doing—and how far does its opin-
ion constrain EPA? The majority makes no effort to say.
And because that is so, the majority cannot even attempt to
ground its limit in the statutory language. I've just shown
that restricting EPA to technological controls is inconsistent
with Section 111, especially when read in conjunction with
other statutory provisions. And the majority provides no
to new sources, and not to existing ones. As to the latter, Congress al-
lowed EPA more latitude: The Agency could use technological or non-
technological methods, as it preferred. That distinction is what creates
interpretive diffculties for the majority—again, no matter why it arose.
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reason to think that its (possibly) different limit fares any
better
. Section 111 does not impose any constraints—tech-
nological or otherwise—on EPA's authority to regulate sta-
tionary sources (except for those stated, like cost). In some-
how (and to some extent) saying otherwise, the majority
fouts the statutory text.
“Congress,” this Court has said, “knows to speak in plain
terms when it wishes to circumscribe, and in capacious terms
when it wishes to enlarge, agency discretion.” Arlington v.
FCC, 569 U. S. 290, 296 (2013). In Section 111, Congress
spoke in capacious terms. It knew that “without regulatory
fexibility, changing circumstances and scientifc develop-
ments would soon render the Clean Air Act obsolete.” Mas-
sachusetts, 549 U. S., at 532. So the provision enables EPA
to base emissions limits for existing stationary sources on
the “best system.” That system may be technological in na-
ture; it may be whatever else the majority has in mind; or,
most important here, it may be generation shifting. The
statute does not care. And when Congress uses “expansive
language” to authorize agency action, courts generally may
not “impos[e] limits on [the] agency's discretion.” Little Sis-
ters of the Poor Saints Peter and Paul Home v. Pennsylva-
nia, 591 U. S. –––, ––– (2020). That constraint on judicial
authority—that insistence on judicial modesty—should re-
solve this case.
II
The majority thinks not, contending that in “certain ex-
traordinary cases”—of which this is one—courts should start
off with “skepticism” that a broad delegation authorizes
agency action. Ante, at 723–724. The majority labels that
view the “major questions doctrine,” and claims to fnd sup-
port for it in our caselaw. Ante, at 723–724, 732. But the
relevant decisions do normal statutory interpretation: In
them, the Court simply insisted that the text of a broad dele-
gation, like any other statute, should be read in context, and
with a modicum of common sense. Using that ordinary
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method, the decisions struck down agency actions (even
though
they plausibly ft within a delegation's terms) for two
principal reasons. First, an agency was operating far out-
side its traditional lane, so that it had no viable claim of ex-
pertise or experience. And second, the action, if allowed,
would have conficted with, or even wreaked havoc on, Con-
gress's broader design. In short, the assertion of delegated
power was a misft for both the agency and the statutory
scheme. But that is not true here. The Clean Power Plan
falls within EPA's wheelhouse, and it fts perfectly—as I've
just shown—with all the Clean Air Act's provisions. That
the Plan addresses major issues of public policy does not
upend the analysis. Congress wanted EPA to do just that.
Section 111 entrusts important matters to EPA in the expec-
tation that the Agency will use that authority to combat pol-
lution—and that courts will not interfere.
A
“[T]he words of a statute,” as the majority states, “must
be read in their context and with a view to their place in the
overall statutory scheme.” FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 133 (2000); see ante, at 721. We
do not assess the meaning of a single word, phrase, or provi-
sion in isolation; we also consider the overall statutory de-
sign. And that is just as true of statutes broadly delegating
power to agencies as of any other kind. In deciding on the
scope of such a delegation, courts must assess how an agency
action claimed to fall within the provision fts with other as-
pects of a statutory plan.
So too, a court “must be guided to a degree by common
sense as to the manner in which Congress is likely to dele-
gate.” Brown & Williamson, 529 U. S., at 133. Assume
that a policy decision, like this one, is a matter of signifcant
“economic and political magnitude.” Ibid. We know that
Congress delegates such decisions to agencies all the time—
and often via broadly framed provisions like Section 111.
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See infra, at 780–782. But Congress does so in a sensible
way
. To decide whether an agency action goes beyond what
Congress wanted, courts must assess (among other poten-
tially relevant factors) the nature of the regulation, the na-
ture of the agency, and the relationship of the two to each
other. See, e. g., Barnhart v. Walton, 535 U. S. 212, 222
(2002). In particular, we have understood, Congress does
not usually grant agencies the authority to decide signifcant
issues on which they have no particular expertise. So when
there is a mismatch between the agency's usual portfolio and
a given assertion of power, courts have reason to question
whether Congress intended a delegation to go so far.
The majority today goes beyond those sensible principles.
It announces the arrival of the “major questions doctrine,”
which replaces normal text-in-context statutory interpreta-
tion with some tougher-to-satisfy set of rules. Ante, at 720–
735. Apparently, there is now a two-step inquiry. First, a
court must decide, by looking at some panoply of factors,
whether agency action presents an “extraordinary case[ ].”
Ante, at 721; see ante, at 724–732. If it does, the agency
“must point to clear congressional authorization for the
power it claims,” someplace over and above the normal stat-
utory basis we require. Ante, at 723 (internal quotation
marks omitted); see ante, at 732–735. The result is statu-
tory interpretation of an unusual kind. It is not until page
27 of a 30-page opinion that the majority begins to seriously
discuss the meaning of Section 111. And even then, it does
not address straight-up what should be the question: Does
the text of that provision, when read in context and with a
common-sense awareness of how Congress delegates, author-
ize the agency action here?
The majority claims it is just following precedent, but that
is not so. The Court has never even used the term “major
questions doctrine” before. And in the relevant cases, the
Court has done statutory construction of a familiar sort. It
has looked to the text of a delegation. It has addressed how
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an agency's view of that text works—or fails to do so—in the
context
of a broader statutory scheme. And it has asked,
in a common-sensical (or call it purposive) vein, about what
Congress would have made of the agency's view—otherwise
said, whether Congress would naturally have delegated au-
thority over some important question to the agency, given
its expertise and experience. In short, in assessing the
scope of a delegation, the Court has considered—without
multiple steps, triggers, or special presumptions—the ft be-
tween the power claimed, the agency claiming it, and the
broader statutory design.
The key case here is FDA v. Brown & Williamson.
There, the Food and Drug Administration (FDA) asserted
that its power to regulate “drugs” and “devices” extended to
tobacco products. The claim had something to it: FDA has
broad authority over “drugs” and drug-delivery “devices,”
and the defnitions of those terms could be read to encompass
nicotine and cigarettes. But the asserted authority “simply
[did] not ft” the overall statutory scheme. 529 U. S., at 143.
FDA's governing statute required the agency to ensure that
regulated products were “safe” to be marketed—but there
was no making tobacco products safe in the usual sense. Id.,
at 133–143. So FDA would have had to reinterpret what it
meant to be “safe,” or else ban tobacco products altogether.
Ibid. Both options, the Court thought, were preposterous.
Until the agency action at issue, tobacco products hadn't
been spoken of in the same breath as pharmaceuticals (FDA's
paradigmatic regulated product). And Congress had cre-
ated in several statutes a “distinct regulatory scheme” for
tobacco, not involving FDA. Id., at 155–156. So all the evi-
dence was that Congress had never meant for FDA to have
any—let alone total—control over the tobacco industry, with
its “unique political history.” Id., at 159. Again, there was
“simply” a lack of “ft” between the regulation at issue, the
agency in question, and the broader statutory scheme. Id.,
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The majority's effort to fnd support in Brown & William-
so
n for its interpretive approach fails. See ante, at 723–724.
It may be helpful here to quote the full sentence that the
majority quotes half of. “In extraordinary cases,” the Court
stated, “there may be reason to hesitate before concluding
that Congress has intended such an implicit delegation.”
529 U. S., at 159. For anyone familiar with this Court's
Chevron doctrine, that language will ring a bell. The Court
was saying only—and it was elsewhere explicit on this
point—that there was reason to hesitate before giving FDA's
position Chevron deference. See id., at 132–133, 159–161.
And what was that reason? The Court went on to explain
that it would not defer to FDA because it read the relevant
statutory provisions as negating the agency's claimed au-
thority. See id., at 160 (“[W]e are obliged to defer not to
the agency's expansive construction of the statute, but
to Congress' consistent judgment to deny the FDA this
power”); id., at 133 (fnding at Chevron's frst step that “Con-
gress has directly spoken to the issue here and precluded the
FDA's” asserted power). In reaching that conclusion, the
Court relied (as I've just explained) not on any special “clear
authorization” demand, but on normal principles of statutory
interpretation: look at the text, view it in context, and use
what the Court called some “common sense” about how Con-
gress delegates. Ibid. That is how courts are to decide, in
the majority's language, whether an agency has asserted a
“highly consequential power beyond what Congress could
reasonably be understood to have granted.” Ante, at 724.
The Court has applied the same kind of analysis in subse-
quent cases—holding in each that an agency exceeded the
scope of a broadly framed delegation when it operated out-
side the sphere of its expertise, in a way that warped the
statutory text or structure. In Gonzales v. Oregon, 546
U. S. 243 (2006), we rejected the Attorney General's asser-
tion of authority (under a broad “public interest” standard)
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cide, even in States where doing so was legal. See id., at
248
–249, 261–275. We doubted Congress would have dele-
gated such a “quintessentially medical judgment[ ]” to “an
executive offcial who lacks medical expertise.” Id., at 266–
267. And we pointed to statutory provisions in which Con-
gress—in opposition to the claimed power—had “painstak-
ingly described the Attorney General's limited authority” to
deregister physicians. Id., at 262.
3
Later, in Utility Air Regulatory Group v. EPA, 573 U. S.
302 (2014), the Court relied on similar reasoning to reject
EPA's efforts to regulate “millions of small” and previously
unregulated sources of emissions—“including retail stores,
offces, apartment buildings, shopping centers, schools, and
churches.” Id., at 328. Key to that decision was the
Court's view that reading the delegation so expansively
would be “inconsistent with” the statute's broader “structure
and design.” Id., at 321. The Court explained that allow-
ing the agency action to proceed would necessitate the “re-
writing ” of other “unambiguous statutory terms”—indeed,
of “precise numerical thresholds.” Id., at 321, 325–326. (In
quoting one cryptic sentence of Utility Air as supporting its
new approach, see ante, at 723, the majority ignores the nine
preceding pages of analysis of the statute's text and context,
see 573 U. S., at 315–324.)
And last Term, the Court concluded that the Centers for
Disease Control and Prevention (CDC) lacked the power to im-
pose a nationwide eviction moratorium. Alabama Assn. of
Realtors v. Department of Health and Human Servs., 594
U. S. –––, ––– – ––– (2021) (per curiam). The Court held that
other statutory language made it a “stretch” to read the relied-
3
Similarly, in King v. Burwell, 576 U. S. 473 (2015), we relied on
Brown & Williamson in declining to defer to the Internal Revenue Serv-
ice's construction of the Affordable Care Act. We thought it highly “un-
likely that Congress would have delegated” an important decision about
healthcare pricing to an agency with “no expertise in crafting health insur-
ance policy.” 576 U. S., at 486.
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on delegation as covering the CDC's action. Id., at –––.
And
the Court raised an eyebrow at the thought of the CDC
“intrud[ing]” into “the landlord-tenant relationship”—a mat-
ter outside the CDC's usual “domain.” Ibid.
4
The eyebrow-raise is indeed a consistent presence in these
cases, responding to something the Court found anomalous—
looked at from Congress's point of view—in a particular
agency's exercise of authority. In each case, the Court
thought, the agency had strayed out of its lane, to an area
where it had neither expertise nor experience. The Attor-
ney General making healthcare policy, the regulator of phar-
maceutical concerns deciding the fate of the tobacco industry,
and so on. And in each case, the proof that the agency had
roamed too far afeld lay in the statutory scheme itself. The
agency action collided with other statutory provisions; if the
former were allowed, the latter could not mean what they
said or could not work as intended. FDA having to declare
tobacco “safe” to avoid shutting down an industry; or EPA
having literally to change hard numbers contained in the
Clean Air Act. There, according to the Court, the statu-
tory framework was “not designed to grant” the authority
claimed. Utility Air, 573 U. S., at 324. The agency's “sin-
gular” assertion of power “would render the statute unrec-
ognizable to the Congress” that wrote it. Ibid. (internal
quotation marks omitted).
B
The Court today faces no such singular assertion of agency
power. As I have already explained, nothing in the Clean
Air Act (or, for that matter, any other statute) conficts with
EPA's reading of Section 111. Notably, the majority does
not dispute that point. Of course, it views Section 111 (if
for unexplained reasons) as less clear than I do. Compare
4
Not every Justice, of course, agreed with the Court's conclusions in the
above-discussed cases; to be frank, I dissented in a couple. But what mat-
ters here is the analysis those decisions undertook—and how, as I'll de-
scribe, it supports EPA's Clean Power Plan.
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ante, at 732, with supra, at 758–761. But nowhere does the
major
ity provide evidence from within the statute itself that
the Clean Power Plan conficts with or undermines Con-
gress's design. That fact alone makes this case different
from all the cases described above. As to the other critical
matter in those cases—is the agency operating outside its
sphere of expertise?—the majority at least tries to say some-
thing. It claims EPA has no “comparative expertise” in
“balancing the many vital considerations of national policy”
implicated in regulating electricity sources. Ante, at 729.
But that is wrong.
Start with what this Court has said before on the subject,
refecting Congress's view of the matter. About a decade
ago, we recognized that Congress had “delegated to EPA” in
Section 111 “the decision whether and how to regulate
carbon-dioxide emissions from powerplants. ” Amer ican
Elec. Power, 564 U. S., at 426. To stress the key word (be-
cause the majority seems to miss it, see ante, at 730–731):
not merely “whether” but also “how.” In making that dele-
gation, we explained, Congress knew well what it was doing.
Regulating power plant emissions is a complex undertaking.
To do it right requires “informed assessment of competing
interests”: “Along with the environmental beneft potentially
achievable, our Nation's energy needs and the possibility of
economic disruption must weigh in the balance.” 564 U. S.,
at 427; see § 7411(a)(1) (instructing EPA to consider “energy
requirements,” “cost,” and other factors). Congress spe-
cifcally “entrust[ed] such complex balancing to EPA,” be-
cause that “expert agency” has the needed “scientifc, eco-
nomic, and technological resources” to carry it out. 564
U. S., at 427–428. So the balancing—including of the Na-
tion's “energy requirements”—that the majority says EPA
has no “comparative expertise” in? § 7411(a)(1); ante, at 729.
We explained 11 short years ago, citing Congress, that it was
smack in the middle of EPA's wheelhouse.
And we were right. Consider the Clean Power Plan's
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to see the rule's normalcy. The “what” is the subject matter
of
the Plan: carbon dioxide emissions. This Court has al-
ready found that those emissions fall within EPA's domain.
We said then: “[T]here is nothing counterintuitive to the no-
tion that EPA can curtail the emission of substances that are
putting the global climate out of kilter.” Massachusetts,
549 U. S., at 531. This is not the Attorney General regulat-
ing medical care, or even the CDC regulating landlord-tenant
relations. It is EPA (that's the Environmental Protection
Agency, in case the majority forgot) acting to address the
greatest environmental challenge of our time. So too, there
is nothing special about the Plan's “who”: fossil-fuel-fred
power plants. In Utility Air, we thought EPA's regulation
of churches and schools highly unusual. See supra, at 769.
But fossil-fuel-fred plants? Those plants pollute—a lot—
and so they have long lived under the watchful eye of EPA.
That was true even before EPA began regulating carbon di-
oxide. See Train v. Natural Resources Defense Council,
Inc., 421 U. S. 60, 78 (1975).
Finally, the “how” of generation shifting creates no mis-
match with EPA's expertise. As the Plan noted, generation
shifting has a well-established pedigree as a tool for reducing
pollution; even putting aside other federal regulation, see
infra, at 776–777, both state regulators and power plants
themselves have long used it to attain environmental goals.
See 80 Fed. Reg. 64664; Brief for Power Company Respond-
ents 47; see also S. Breyer, Regulation and Its Reform 444,
n. 1 (1982) (citing literature on the subject from the 1970s).
The technique is, so to speak, a tool in the pollution-control
toolbox. And that toolbox is the one EPA uses. So that
Agency, more than any other, has the desired “comparative
expertise.” Ante, at 729. The majority cannot contest that
point frontally: It knows that cap and trade and similar
mechanisms are an ordinary part of modern environmental
regulation. Instead, the majority protests that Congress
would not have wanted EPA to “dictat[e],” through genera-
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Kagan, J., dissenting
tion shifting, the “mix of energy sources nationwide.” Ante,
at
730. But that statement refects a misunderstanding of
how the electricity market works. Every regulation of
power plants—even the most conventional, facility-specifc
controls—“dictat[es]” the national energy mix to one or an-
other degree. That result follows because regulations affect
costs, and the electrical grid works by taking up energy from
low-cost providers before high-cost ones. Consider an ex-
ample: Suppose EPA requires coal-fred plants to use carbon-
capture technology. That action increases those plants'
costs, and automatically (by virtue of the way the grid oper-
ates) reduces their share of the electricity market. So EPA
is always controlling the mix of energy sources. In that
sense (though the term has taken on a more specialized
meaning), everything EPA does is “generation shifting.”
The majority's idea that EPA has no warrant to direct such
a shift just indicates that courts sometimes do not really
get regulation.
5
Why, then, be “skeptic[al]” of EPA's exercise of authority?
Ante, at 732. When there is no misft, of the kind apparent
in our precedents, between the regulation, the agency, and
5
The majority's only response to the argument above similarly reveals
a misperception as to the practical impact of different regulatory tech-
niques. According to the majority, there is an “obvious difference” be-
tween changing the energy mix by conventional technological regulation
and doing so by measures like cap and trade. Ante, at 731, n. 4. But
in fact there is not. As I'll detail later, generation shifting can effect a
signifcant—or instead an insignifcant—change in the energy mix; and the
same is true of technological regulations. See in fra, at 775–776. It all
depends on the specifcs: There is no necessary connection (in either direc-
tion) between the kind of regulation and the magnitude of its effect. For
example, a rule requiring the use of carbon-capture technology would have
shifted far more electricity production from coal-fred plants than the
Clean Power Plan would have. See ibid. In suggesting that cap-and-
trade programs are somehow more suspect, the majority merely serves to
disadvantage what is often the smartest kind of regulation: market-based
programs that achieve the biggest bang for the buck. That is why so
many power companies are on EPA's side in this litigation.
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the statutory design? Although the majority offers a furry
of
complaints, they come down in the end to this: The Clean
Power Plan is a big new thing, issued under a minor statu-
tory provision. See ante, at 724, 728, 730 (labeling the Plan
“transformative” and “unprecedented” and calling Section
111(d) an “ancillary” “ backwater ”). I have already ad-
dressed the back half of that argument: In fact, there is noth-
ing insignifcant about Section 111(d), which was intended
to ensure that EPA would limit existing stationary sources'
emissions of otherwise unregulated pollutants (however few
or many there were). See supra, at 757–758. And the front
half of the argument doesn't work either. The Clean Power
Plan was not so big. It was not so new. And to the extent
it was either, that should not matter.
As to bigness—well, events have proved the opposite: The
Clean Power Plan, we now know, would have had little or
no impact. The Trump administration's repeal of the Plan
created a kind of controlled experiment: The Plan's “magni-
tude” (ante, at 728) could be measured by seeing how far short
the industry fell of the Plan's nationwide emissions target.
Except that turned out to be the wrong question, because
the industry didn't fall short of the Plan's goal; rather, the
industry exceeded that target, all on its own. See App. 265
(declaration of EPA offcial). And it did so mainly through
the generation-shifting techniques that the Plan called for.
See ibid.; Brief for United States 47. In effect, the Plan
predicted market behavior, rather than altered it (as regula-
tions usually do). Cf. Utility Air, 573 U. S., at 321–322 (dis-
cussing the “calamitous consequences” of the EPA approach
there under review). And that fact has been understood for
some years. At the time of the repeal, the Trump adminis-
tration explained that “there [was] likely to be no difference
between a world where the [Clean Power Plan was] imple-
mented and one where it [was] not.” 84 Fed. Reg. 32561.
6
6
Even when the Clean Power Plan was frst issued, its projected impact
was far less than what the majority implies. The majority states, for
example, that the rule would have “reduce[d] GDP by at least a trillion
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It is small wonder, then, that the power industry overwhelm-
i
ngly supports EPA in this case. See Brief for Power Com-
pany Respondents 2–3. In the regulated parties' view, the
rule aimed to achieve what most power companies also want:
substantial reductions in carbon dioxide emissions accom-
plished in a cost-effective way while maintaining a reliable
electricity market. See id., at 26–27, 38, 41–42.
The majority thus pivots to the massive consequences gen-
eration shifting could produce—but that claim fares just as
poorly. On EPA's view of its own authority, the majority
worries, some future rule might “forc[e] coal plants to `shift'
away virtually all of their generation—i. e., to cease making
power altogether.” Ante, at 728. But looking at the text
of Section 111(d) might here come in handy. For the statute
imposes, as already shown, a set of constraints—particularly
involving costs and energy needs—that would preclude so
extreme a regulation. See Brief for United States 41–42
(conceding the point); supra, at 758–759. And if the major-
ity thinks those constraints do not really constrain, then it
has a much bigger problem. For “traditional” technological
controls, of the kind the majority approves, can have equally
dramatic effects. Ante, at 727. Take, for example, the
“fuel-switching ” regulation the majority mentions. Ibid.
Such a rule does just what you might think: It requires a
plant to burn a different kind of fuel—say, natural gas in-
stead of coal. So it too can signifcantly “restructur[e] the
Nation's overall mix of electricity generation.” Ante, at 720.
Or take an even more technological-sounding approach: the
2009 dollars by 2040.” Ante, at 715. That sounds like a lot, but it is in
fact “equivalent to changes of a few tenths of 1 percent from baseline.”
Dept. of Energy, Analysis of the Impacts of the Clean Power Plan 63–
64 (2015). And the “billions of dollars in compliance costs” the majority
highlights were vastly outweighed by the Plan's projected benefts. Ante,
at 714; see 80 Fed. Reg. 64679 (anticipating $5–$8 billion in costs and $32–
$54 billion in benefts by 2030); see also EPA, Regulatory Impact Analysis
for the Clean Power Plan Final Rule 6–35 (2015) (estimating that by 2030
jobs gained from the Plan would be some two or three times greater than
jobs lost).
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use of carbon-capture equipment. Order the installation of
that
equipment, the Trump administration concluded, and
the “exorbitant” costs “would almost certainly force the clo-
sure” of all affected “coal-fred power plants.” 84 Fed. Reg.
32548. The point is a simple one: If generation shifting can
go big, so too can technological controls (assuming, once
again, that the statute's text is ignored). The problem (if
any exists) is not with the channel, but with the volume.
7
The majority's claim about the Clean Power Plan's nov-
elty—the most feshed-out part of today's opinion, see ante,
at 724–728—is also exaggerated. As EPA explained when
it issued the Clean Power Plan, an earlier Section 111(d) reg-
ulation had determined that a cap-and-trade program was
the “best system of emission reduction” for mercury. 70
Fed. Reg. 28616–28621 (2005); see 80 Fed. Reg. 64772. In
the majority's view, that rule was different because the “ac-
tua l emissi on cap” for the contemplated cap-and-trade
scheme was based on the use of a plant-specifc technology—
namely, wet scrubbers. Ante, at 725 (internal quotation
marks omitted). But the approval of cap and trade allowed
EPA to make the emissions limits more stringent than it
otherwise could have, because EPA knew that plants unable
to cost-effectively install scrubbers could instead meet the
limits through generation shifting. See 70 Fed. Reg. 28619.
EPA could have designed the Clean Power Plan in the same
way—say, by setting emissions limits based on carbon-
capture technology, with the expectation that many plants
7
The majority dismisses these hypotheticals as fantastical, protesting
that “EPA has never ordered anything remotely like [them], and we doubt
it could.” Ante, at 728, n. 3. But that's just the point. EPA hasn't
forced the elimination of coal plants—whether through technological con-
trols or generation shifting—because the statutory constraints prevent it
from doing so. The majority offers no reason to think that those con-
straints suffce for the measures it approves (fuel switching and carbon
capture) but not for the measure it rejects (generation shifting). Either
the constraints are enough or they are not. The majority cannot have it
both ways.
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would avail themselves of an approved cap-and-trade pro-
gram
instead. The majority gives no reason to think Sec-
tion 111(d) allows that approach but disallows the Clean
Power Plan. In both, generation shifting is operating to in-
crease the strictness of emissions limits.
And the mercury rule itself was rooted in precedent. A
decade earlier, EPA had determined that States could com-
ply with a Section 111(d) regulation for municipal waste com-
bustors by establishing cap-and-trade programs. See 40
CFR §§ 60.30a, 60.33b(d)(2) (1996). And beyond Section
111(d), trading and other tools of generation shifting become
still more common. For decades, EPA has relied on those
pollution-control techniques in rules covering new internal-
combustion engines under Section 111(b), sources of nitrogen
oxide under the NAAQS program, and motor vehicles under
Section 202(a). See 73 Fed. Reg. 3595 (2008); 71 Fed. Reg.
39159 (2006); 63 Fed. Reg. 57358–57359 (1998); 48 Fed. Reg.
33456 (1983); see also Brief for Richard L. Revesz as Amicus
Curiae 24–29 (collecting similar rules). No doubt the ma-
jority is right that scrubbers and other “add-on controls” are
“more traditional air pollution control measures.” Ante, at
727. EPA readily acknowledged that fact in developing the
Clean Power Plan. But the idea that the Plan's reliance on
generation shifting effected some kind of revolution in
power-plant pollution control? No. As I've noted before,
power plants themselves use that method. State environ-
mental regulators use that method. And EPA has used that
method, including under the statutory provision invoked
here.
In any event, newness might be perfectly legitimate—
even required—from Congress's point of view. I do not dis-
pute that an agency's longstanding practice may inform a
court's interpretation of a statute delegating the agency
power. See ante, at 724–725. But it is equally true, as
Brown & Williamson recognized, that agency practices are
“not carved in stone.” 529 U. S., at 156–157 (internal quota-

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tion marks omitted). Congress makes broad delegations in
par
t so that agencies can “adapt their rules and policies to
the demands of changing circumstances.” Id., at 157. To
keep faith with that congressional choice, courts must give
agencies “ample latitude” to revisit, rethink, and revise their
regulatory approaches. Ibid. So it is here. Section 111(d)
was written, as I've shown, to give EPA plenty of leeway.
See supra, at 757–760. The enacting Congress told EPA to
pick the “best system of emission reduction” (taking into ac-
count various factors). In selecting those words, Congress
understood—it had to—that the “best system” would change
over time. Congress wanted and instructed EPA to keep
up. To ensure the statute's continued effectiveness, the
“best system” should evolve as circumstances evolved—in a
way Congress knew it couldn't then know. See Massachu-
setts, 549 U. S., at 532. EPA followed those statutory direc-
tions to the letter when it issued the Clean Power Plan. It
selected a system (as the regulated parties agree) that
achieved greater emissions reductions at lower cost than any
technological alternative could have, while maintaining a re-
liable electricity market. Even if that system was novel, it
was in EPA's view better—actually, “best.” So it was the
system that accorded with the enacting Congress's choice.
And contra the majority, it is that Congress's choice which
counts, not any later one's. The majority says it “cannot
ignore” that Congress in recent years has “considered and
rejected” cap-and-trade schemes. Ante, at 731–732. But
under normal principles of statutory construction, the major-
ity should ignore that fact ( just as I should ignore that Con-
gress failed to enact bills barring EPA from implementing
the Clean Power Plan). As we have explained time and
again, failed legislation “offers a particularly dangerous basis
on which to rest an interpretation of an existing law a differ-
ent and earlier Congress” adopted. Bostock v. Clayton
County, 590 U. S. –––, ––– (2020) (internal quotation marks
omitted); see Sullivan v. Finkelstein, 496 U. S. 617, 632
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Kagan, J., dissenting
(1990) (Scalia, J., concurring in part) (“Arguments based on
subsequent
legislative history” should “not be taken seri-
ously, not even in a footnote”). Return to Brown & Wil-
liamson, which all agree is the key case in this sphere. It
disclaimed any reliance on “Congress' failure” to grant FDA
jurisdiction over tobacco. 529 U. S., at 155. Instead, the
Court focused on the statutes Congress “ha[d] enacted,”
which created “a distinct regulatory scheme” for tobacco, in-
compatible with FDA's. Ibid. (emphasis added). Here, as
I've shown and the majority effectively concedes, there is
nothing equivalent. See supra, at 760–764. Search high
and low, nothing in current law conficts with, or otherwise
casts doubt on, the Clean Power Plan. That leaves the
Court in much the same place it was when deciding Massa-
chusetts v. EPA. Said the Court then: “That subsequent
Congresses have eschewed enacting binding emissions limi-
tations to combat global warming tells us nothing about
what Congress meant” when it enacted the Clean Air Act.
549 U. S., at 529–530. And so the Court recognized EPA's
authority to regulate carbon dioxide. But that Court was
not this Court; and this Court deprives EPA of the authority
Congress gave it in Section 111(d) to respond to the same
environmental danger.
III
Some years ago, I remarked that “[w]e're all textualists
now.” Harvard Law School, The Antonin Scalia Lecture Se-
ries: A Dialogue with Justice Elena Kagan on the Reading
of Statutes (Nov. 25, 2015). It seems I was wrong. The
current Court is textualist only when being so suits it.
When that method would frustrate broader goals, special
canons like the “major questions doctrine” magically appear
as get-out-of-text-free cards.
8
Today, one of those broader
8
The majority opinion at least addresses the statute's text, though over-
stating its ambiguity and approaching the action taken under it with un-
warranted “skepticism.” Ante, at 732; see ante, at 732–735. The concur-
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goals makes itself clear: Prevent agencies from doing impor-
t
ant work, even though that is what Congress directed.
That anti-administrative-state stance shows up in the major-
ity opinion, and it suffuses the concurrence. See ante, at 723–
724, 729–730; e. g., ante, at 737–740 (Gorsuch, J., concurring).
The kind of agency delegations at issue here go all the
way back to this Nation's founding. “[T]he founding era,”
scholars have shown, “wasn't concerned about delegation.”
E. Posner & A. Vermeule, Interring the Nondelegation Doc-
trine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner & Ver-
meule). The records of the Constitutional Convention, the
ratifcation debates, the Federalist—none of them suggests
any signifcant limit on Congress's capacity to delegate poli-
cymaking authority to the Executive Branch. And neither
does any early practice. The very frst Congress gave
sweeping authority to the Executive Branch to resolve some
of the day's most pressing problems, including questions of
“territorial administration,” “Indian affairs,” “foreign and
domestic debt,” “military service,” and “the federal courts.”
J. Mortenson & N. Bagley, Delegation at the Founding, 121
Colum. L. Rev. 277, 349 (2021) (Mortenson & Bagley). That
Congress, to use a few examples, gave the Executive power
to devise a licensing scheme for trading with Indians; to craft
appropriate laws for the Territories; and to decide how to
pay down the (potentially ruinous) national debt. See id.,
at 334–338, 340–342, 344–345; C. Chabot, The Lost History
of Delegation at the Founding, 56 Ga. L. Rev. 81, 113–134
(2021) (Chabot). Barely anyone objected on delegation
grounds. See Mortenson & Bagley 281–282, 332, 339; Cha-
bot 117–119; Posner & Vermeule 1733–1736.
enough authorize EPA's Plan without ever citing the statutory text. See
ante, at 746–749. Nowhere will you fnd the concurrence ask: What does
the phrase “best system of emission reduction” mean? § 7411(a)(1). So
much for “begin[ning], as we must, with a careful examination of the statu-
tory text.” Henson v. Santander Consumer USA Inc., 582 U. S. 79, 83
(2017).
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It is not surprising that Congress has always delegated,
and
continues to do so—including on important policy issues.
As this Court has recognized, it is often “unreasonable and
impracticable” for Congress to do anything else. American
Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). In all
times, but ever more in “our increasingly complex society,”
the Legislature “simply cannot do its job absent an ability to
delegate power under broad general directives.” Mistretta
v. United States, 488 U. S. 361, 372 (1989). Consider just
two reasons why.
First, Members of Congress often don't know enough—and
know they don't know enough—to regulate sensibly on an
issue. Of course, Members can and do provide overall direc-
tion. But then they rely, as all of us rely in our daily lives,
on people with greater expertise and experience. Those
people are found in agencies. Congress looks to them to
make specifc judgments about how to achieve its more gen-
eral objectives. And it does so especially, though by no
means exclusively, when an issue has a scientifc or technical
dimension. Why wouldn't Congress instruct EPA to select
“the best system of emission reduction,” rather than try to
choose that system itself ? Congress knows that systems of
emission reduction lie not in its own but in EPA's “unique
expertise.” Martin v. Occupational Safety and Health Re-
view Comm'n, 499 U. S. 144, 151 (1991).
Second and relatedly, Members of Congress often can't
know enough—and again, know they can't—to keep regula-
tory schemes working across time. Congress usually can't
predict the future—can't anticipate changing circumstances
and the way they will affect varied regulatory techniques.
Nor can Congress (realistically) keep track of and respond to
fast-fowing developments as they occur. Once again, that is
most obviously true when it comes to scientifc and technical
matters. The “best system of emission reduction” is not
today what it was yesterday, and will surely be something
different tomorrow. So for this reason too, a rational Con-
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gress delegates. It enables an agency to adapt old regula-
tory
approaches to new times, to ensure that a statutory pro-
gram remains effective. See, e. g., National Federation of
Independent Business v. OSHA, 595 U. S. 109, 134 (2022)
(Breyer, Sotomayor, and Kagan, JJ., dissenting) (observ-
ing that a statute's broad language was meant to ensure that
an agency had “the tools needed to confront emerging
dangers”).
Over time, the administrative delegations Congress has
made have helped to build a modern Nation. Congress
wanted fewer workers killed in industrial accidents. It
wanted to prevent plane crashes, and reduce the deadliness
of car wrecks. It wanted to ensure that consumer products
didn't catch fre. It wanted to stop the routine adulteration
of food and improve the safety and effcacy of medications.
And it wanted cleaner air and water. If an American could
go back in time, she might be astonished by how much prog-
ress has occurred in all those areas. It didn't happen
through legislation alone. It happened because Congress
gave broad-ranging powers to administrative agencies, and
those agencies then flled in—rule by rule by rule—Con-
gress's policy outlines.
This Court has historically known enough not to get in the
way. Maybe the best explanation of why comes from Justice
Scalia. See Mistretta, 488 U. S., at 415–416 (dissenting opin-
ion). The context was somewhat different. He was re-
sponding to an argument that Congress could not constitu-
tionally delegate broad policymaking authority; here, the
Court reads a delegation with unwarranted skepticism, and
thereby artifcially constrains its scope. But Justice Scalia's
reasoning remains on point. He started with the inevitabil-
ity of delegations: “[S]ome judgments involving policy con-
siderations,” he stated, “must be left to [administrative] off-
cers.” Id., at 415. Then he explained why courts should
not try to seriously police those delegations, barring—or, I'll
add, narrowing—some on the ground that they went too far.
The scope of delegations, he said,
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“must be fxed according to common sense and the in-
herent
necessities of the governmental co-ordination.
Since Congress is no less endowed with common sense
than we are, and better equipped to inform itself of the
necessities of government; and since the factors bearing
upon those necessities are both multifarious and (in the
nonpartisan sense) highly political . . . it is small wonder
that we have almost never felt qualifed to second-guess
Congress regarding the permissible degree of policy
judgment that can be left to those executing or apply-
ing the law.” Id., at 416 (internal quotation marks
omitted).
In short, when it comes to delegations, there are good rea-
sons for Congress (within extremely broad limits) to get to
call the shots. Congress knows about how government
works in ways courts don't. More specifcally, Congress
knows what mix of legislative and administrative action con-
duces to good policy. Courts should be modest.
Today, the Court is not. Section 111, most naturally
read, authorizes EPA to develop the Clean Power Plan—in
other words, to decide that generation shifting is the “best
system of emission reduction” for power plants churning out
carbon dioxide. Evaluating systems of emission reduction
is what EPA does. And nothing in the rest of the Clean Air
Act, or any other statute, suggests that Congress did not
mean for the delegation it wrote to go as far as the text says.
In rewriting that text, the Court substitutes its own ideas
about delegations for Congress's. And that means the
Court substitutes its own ideas about policymaking for Con-
gress's. The Court will not allow the Clean Air Act to work
as Congress instructed. The Court, rather than Congress,
will decide how much regulation is too much.
The subject matter of the regulation here makes the
Court's intervention all the more troubling. Whatever else
this Court may know about, it does not have a clue about
how to address climate change. And let's say the obvious:
The stakes here are high. Yet the Court today prevents
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congressionally authorized agency action to curb power
plants'
carbon dioxide emissions. The Court appoints it-
self—instead of Congress or the expert agency—the
decision-maker on climate policy. I cannot think of many
things more frightening. Respectfully, I dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 711, line 17 from bottom: “toxic” is replaced with “hazardous”
p. 712, line 3 from bottom: “(emphasis deleted)” is inserted after “64748”
p. 717, lines 10 and 11: “, and The North American Coal Corporation
(NACC)” is deleted
p. 718, line 9: “NACC,” is replaced with “The North American Coal
Corporation”
p. 737, line 8: “a” is inserted before “Congress”
p. 750, n. 6, line 6: “delegation” is replaced with “delegating ”
p. 769, line 2 from bottom: “(per curiam)” is inserted after “(2021)”