San Diego Journal of Climate & Energy Law
Abstract
This Comment proceeds in three parts. Part I traces the development of the Major Questions Doctrine. Under the “old” doctrine, the key determinations that an agency’s ruling was major were (1) policy novelty and (2) policy economic impact. After using these factors to find an agency’s rule to be major, the Court would then independently interpret the statute the agency claimed authority from. The “new” Major Questions Doctrine departs from this previous rationale. Although the Court still considers (1) policy novelty, under this scheme, the Court further assesses (2) the political significance or controversial nature of policy in question and (3) the broader implications of policy rationale. Moreover, and of note, is the Court’s clear statement of the rule under the “new” doctrine. Now, instead of independently interpreting the statute in question after the Court finds an agency’s ruling to be major, the Court requires the agency to point to clear Congressional authority for the power the agency claims.
Part II addresses the culmination of the new Major Questions Doctrine in West Virginia v. EPA. There, the Court applied the new factors of “major-ness” and found generation shifting to be a major regulation. The Court argued generation shifting was novel because the EPA had never promulgated similar regulations. Further, the Court believed generation shifting was a politically significant factor because Congress had rejected similar plans in the past. The Court also considered the broader policy implications of allowing generation shifting, asking whether allowing this regulation would give the EPA authority to shut down all coal-based power production. After finding generation shifting to be major, the Court required the EPA to provide clear congressional authority, and ultimately rejected generation shifting when the EPA failed to do so.
Part III turns to AI’s role in fighting climate change and whether AI regulation by the EPA would implicate the Major Questions Doctrine. By responding to historical data and making accurate predictions, AI can optimize both power generation and energy demand prediction. In streamlining power output and demand, AI can reduce blackouts and, importantly, reduce the amount of idle power generation necessary to store in the grid. The EPA could implement regulations involving AI in the energy-generation context. However, the Court would likely consider such a regulation major. Applying the “major-ness” factors, AI is novel since it has yet to be used by the EPA to regulate power generation; AI is likely politically significant because of controversy surrounding the technology; and AI has broader policy implications the Court would likely question, such as whether the allowing this regulation would lead to human job replacement.
Recommended Citation
David Collins,
A Major Question for Antipollution Policy: Artificial Intelligence Regulation in the Wake of West Virginia v. E.P.A.,
15
San Diego J. Climate & Energy L.
111
(2024)
Available at:
https://digital.sandiego.edu/jcel/vol15/iss0/5