Abstract

"Lousy Historians with Lifetime Appointments: The Case of West Virginia v. EPA"

Alan Loeb, Alan P. Loeb and Associates (loeb.alan@prodigy.net)

In the U.S. the term "administrative state" has recently become central to policy debates.
Typically it is framed as a historical phenomenon that started with the 19th Century regulatory
commissions, expanded in the New Deal, and encountered an "explosion" of regulation after
1970. This was the portrayal given by Justice Gorsuch in his concurring opinion in West Virginia v. EPA (2022), a case that relied on this history in adopting the "major questions doctrine" to roll back EPA's climate regulations for electric utilities. But is the Court's account of the administrative state demonstrable as a historical fact, or is it more rhetorical than real?
Gorsuch cited legal accounts but little actual history. If the Court is to make the administrative
state central, one would want to know it has ascertained that such a state actually exists.
This paper looks at the historical administrative state and finds that while an administrative state
does govern modern environmental problems, the administrative state that actually applies is not
the one the Court was thinking of.
The administrative state applicable to modern environmental problems was created in the
Surgeon General's review of tetraethyl lead in 1925-26, in response to a new, previously unencountered environmental scenario. The outcome of that proceeding became an administrative state as a result of the doctrines the proprietors of tetraethyl lead -- GM, DuPont, Standard Oil and Ethyl -- created to make a lenient regulatory regime acceptable to the public. Being a case of first impression, the event established precedent that would govern the petroleum and chemical industries for decades. It survives today as a principal argument used by industry to fight climate regulation. It's all one story -- "the only discontinuity is in memory."