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The Major Questions Doctrine’s Upside for Combatting Climate Change (WP-23-12)

Michael Barsa and David Dana

West Virginia v. EPA has been widely read as an attack on climate regulation and on ambitious, creative, effective regulation of all sorts. But there is another side to West Virginia’s controversial major questions doctrine: That doctrine strongly undercuts claims of federal agency preemption, field preemption, and, to a lesser extent, federal conflict preemption. Invoking West Virginia, states and localities should be able to carve out a larger sphere of freedom in which to tackle pressing problems, including, but not limited to, climate change. That larger sphere of freedom includes the states’ and localities’ suits to force major companies to internalize some of the social costs of their fossil fuel products. Although this was almost certainly not the Supreme Court’s intent, West Virginia may propel those suits towards a real hearing on the merits.

Michael Barsa, Professor of Practice, Pritzker School of Law, Northwestern University

David Dana, Kirkland & Ellis Professor of Law and IPR Associate, Northwestern University

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