By now, you have all heard that the court struck down the EPA's ambitious rules on greenhouse gas emissions in West Virginia v. EPA, 2022 U.S. LEXIS 3268 (June 30, 2022). It takes the typical securities lawyer less than 10 seconds to think: "Maybe that does it for those [expletive-deleted] SEC rules on climate risk disclosures." You could be correct, but much depends on how a very new constitutional doctrine—the Major Questions doctrine—is interpreted. When does it apply? The issue here is not just what the SEC can do, but also what Congress must say and how clearly must it speak.

At the outset, we need to condense much law into a few paragraphs. As Justice Scalia cleverly said in Whitman v. American Trucking Ass'n, 531 U.S. 457, 468 (2001), Congress "does not … hide elephants in mouseholes." That is an apt statement about statutory interpretation. But in the eyes of the doctrine's truest believers—namely, Justices Gorsuch and Alito—the doctrine is much more than a maxim of construction and represents a new cornerstone of constitutional law that enforces the separation of powers and protects federalism by guarding the powers of the states from encroachment by supposedly greedy administrative agencies. Still, it is not clear that the majority of the court fully agrees with the Gorsuch/Alito concurring opinion.