On the surface, the Supreme Court ruling on the EPA means nothing for cannabis. On June 30th, 2022, the United States Supreme Court issued its verdict for West Virginia v. EPA. This case involves how an administrative arm of the U.S. government – the Environmental Protection Agency (EPA) – enforces its authority over greenhouse gas emissions.
Key takeaways from this involve the “major questions” doctrine, the Chevron deference doctrine, and what kind of power the EPA has to enforce its rules. Of course, the Court is not a legislator. Control remains in the hands of Congress, just as it has since the 18th century.
Most importantly, the Court’s decision indirectly empowers the individual States. Narrowing the scope of the EPA’s mandate handicaps the federal government and encourages the States to set their own greenhouse gas emission standards.
What does the Supreme Court ruling on the EPA mean for cannabis? Particularly in the States where cannabis is legal? It means federal authorities can’t use the EPA as a backdoor to dismantle the cannabis industry.
So far, the feds have been content to leave well enough alone. But if the U.S. Government does ever legalize cannabis federally, and they take a German or Canadian approach, that is, centralizing power into the hands of a corporate elite – the EPA’s authority before this ruling could have ended any free-market experiment. All they needed was climate change as a justification.
Cannabis Farms Aren’t Carbon Neutral
Fact is, cannabis farms create pollution. The Supreme Court ruling on the EPA might mean cannabis farms aren’t at the mercy of the administrative state. This ruling happened by applying the “major questions” doctrine.
Chief Justice Roberts’ majority opinion held that in “certain extraordinary cases” where a government bureaucracy asserts a broad power of “economic and political significance,” courts should look for a clear sign from Congress. The courts aren’t a legislative authority. They need authorization from Congress.
Congress will delegate its authority to agencies like the EPA to regulate commerce and industry. But if the rules are too broad or defined in general terms, the Supreme Court will demand an explicit statutory authorization. This is what’s meant by the “major questions” doctrine. Proponents say it’s a good way of limiting the arbitrary authority of government bureaucracies. Critics say it’s a handicap to getting anything done in government. Putting the U.S. at a disadvantage compared to other nation-states.
Indeed, if the Court ruled the other way, the EPA’s authority to lower carbon emissions could have gotten the job done. Suppose in the future, when the U.S. does legalize, hundreds of thousands of cannabis farms are shut down based on the EPA’s cannabis farms emission regulations. The goal is to supply Americans with cannabis from four or five mega-farms. Bureaucrats find it easier to deal with a few major corporations than millions of small businesses. Plus, on the surface, it does look as if the mega-farms emit less than thousands of small cannabis farms.
But this ignores the unseen potential. It’s a static, bureaucratic way of looking at the world. It assumes no innovation in cannabis farming and no way to reduce emissions except by forcing people at gunpoint.
“Major Questions” Doctrine & Chevron Deference Doctrine
This is the first time the Court has formerly used the phrase “major questions” doctrine. But the principle has been applied before. In 2000, the Court rejected the asserted authority of the Food and Drug Administration (FDA) to regulate tobacco products, including “delivery devices.”
More recently, the Supreme Court embodied the principle by preventing the CDC and Occupation Safety and Health Administration from enforcing its covid vaccine mandates.
The Court didn’t strike down Chevron, which requires courts to defer to an agency’s interpretation of an ambiguous statute passed by Congress. Many expected they would, but the majority opinion doesn’t even cite it.
However, this decision will affect how the U.S. government approaches the regulatory power of the EPA. Some technicalities involve the case’s specifics, such as disagreement over “generation shifting” technologies like partial carbon capture and storage or natural gas co-firing.
But the Court’s decision establishes that EPA will need explicit legislative authority to withstand legal challenges. The “major questions” doctrine is a powerful tool that Americans can use against the bureaucratic administrative state. Congress still has the power to delegate these “major questions” to federal agencies. But they must do so in clear, descriptive language.
The Supreme Court’s ruling on the EPA means that if Congress wants to dismantle a free market cannabis industry in the name of climate change – it will have to spell out exactly how they’re going to do this. No more hiding behind the EPA bureaucracy.
What the Supreme Court Ruling on the EPA Means for Cannabis
The Supreme Court ruling on the EPA might mean nothing for cannabis right now. But the decision will no doubt encourage some States to use their authority to regulate greenhouse gas emissions. And given the newly diminished power of the EPA, this could mean environmental policies set by States instead of the federal government.
Legal cannabis states can protect themselves from a corporate takeover from Washington DC. It’ll also allow society to see how different environmental regulations could work in the cannabis industry. There’s no sense in putting all your eggs in one basket. After all, pollution is a private property issue, and there’s no reason individual States and municipalities can’t deal with private property issues.
What sense is there in allowing a city of bureaucrats to dictate how 335 million people will live?
The Supreme Court ruling on the EPA means cannabis, among other industries, are safe from federal overreach. Undoubtedly, West Virginia v. EPA will be invoked whenever the FCC tries to regulate the internet or when the Securities and Exchange Commission tries to enforce “Environmental Social and Governance” requirements.
The “major questions” doctrine is a powerful tool. We can dismantle the administrative state in the right hands, with suitable cases, good lawyers and competent judges. The United States of America can return to a federal government bound by its constitutional limits.