 Last few stragglers just sit down here. Well, let's go ahead and get going. All right. Welcome to those viewing either in person or virtually this Wednesday afternoon, lucky 13 technical session of the Nuclear Regulatory Commission's 35th Annual Regulatory Information Conference. And while this is labeled as a technical session, as has been the case for the past several years, to foster a timely discussion about a significant legal issue impacting the associated fields of administrative law and nuclear regulation, the session has been organized by the NRC's Atomic Safety and Licensing Board Panel under the direction of Chief Administrative Judge Roy Hawkins. My name is Paul Bolwork. I'm one of the Licensing Board Panel's legal administrative judges. Panel Legal Administrative Judge William Frolic and I are serving as the co-chairs for this Rick session. Before we begin, we have a couple of administrative items about the session that the attendees should be aware of. For those attending in person, the Wi-Fi code is Rick 2023, Rick 2023. Also, everyone here in Ballroom D, please silence, remember to silence your electronic devices. The Q&A portion of this session will be through electronic means for both the virtual and the in-person attendees. For those of you in the session room, you may have scanned the QR code from the displays in the foyer. But if not, please take a moment and scan the QR code on the screen over to my right. What was there? Disappeared. There it is. Take a minute. I know it works. Even I, who had a very QR code challenge, was able to make it work yesterday. So you will then be redirected to the specific session page for Q&A. This is the first time today you're accessing, you're accessing, rather, a session Q&A page. You will need to log into the platform using the name and email address you provided when you registered for the Rick. This login is only required once each day. For those of you joining virtually, once you've logged in to the virtual conference platform and joined the session, there's a tab for electronic Q&A. Questions from both the online participants and those on-site will be added to the same queue and we'll try to get through as many questions as we can during the hour and a half that we have planned for today's session. Finally, your feedback is important to future Rick planning. Please let the NRC know what you thought about the Rick this year. Your insights helped the agency to shape next year's program. You can provide feedback through the platform by selecting the feedback tab on the session page or by accessing the feedback link from the Rick website. With these administrative announcements completed, let's move on to the substance of today's session. This afternoon session is entitled, A Look at Future Regulation, NRC and Otherwise in Light of West Virginia vs. EPA. As this title suggests, our focus over the next 90 minutes will be on this June 30th, 2022, United States Supreme Court decision striking down the Obama-era Environmental Protection Agency's Clean Power Plan rulemaking. By way of background, acting under the authority purportedly granted by section 7411b of the Clean Air Act, that EPA rulemaking was intended to address climate change by requiring reductions in electricity generation-related carbon dioxide emissions. Under the Clean Power Plan, besides using traditional source-specific efficiency improving measures to lower carbon dioxide emissions at individual coal and natural gas electrical generation facilities, EPA also would have relied upon generation shifting at the grid level. That is, a shift in the overall percentage of national electricity production from high-emitting producers such as coal facilities to lower-emitting producers such as natural gas, wind and solar facilities. In a six-to-three decision, the Supreme Court majority found this assertion of EPA authority wanting under a body of case law referred to as the Major Questions Doctrine, which it described as holding that there are extraordinary cases in which the history and breadth of the authority that an agency has asserted and the economic and political significance of that assertion provide a reason to hesitate for concluding that Congress meant to confer such authority. According to the court's majority, given both separation of powers principles and a practical understanding of legislative intent, in such cases, the agency must point to clear congressional authorization for the authority to claims, which in that instance, the court concluded EPA was unable to do. In the ensuing months, the potential impact of the Major Questions Doctrine has come to the forefront in a wide array of administrative context, including the recent Supreme Court argument on presidential authority to forgive federal student loan indebtedness. And as we will hear more about from one of our speakers today, the NRC's authority to license a high-level waste interim storage facility in the state of Texas. Moreover, the case leaves in its wake a myriad of unanswered questions, both practical and theoretical, including what is a major question, what is the status of the long-standing Chevron Doctrine regarding deference to an administrative agency's interpretation of its organic statute, and what is the relationship of the Major Questions Doctrine to the perhaps analogous Doctrine of non-delegation? That is, the constitutional limitation on the authority of the Congress to transfer its legislative powers to another branch of government. We are fortunate to have with us today an extraordinarily knowledgeable panel to help us consider and understand these and other conundrums sparked by the Supreme Court's West Virginia versus EPA decision, which appears to have all the hallmarks of becoming one of the court's seminal administrative law rulings. And so I'll turn now to Judge Frohlich, who will provide you with some background information about our distinguished panelists. Judge Frohlich. We have scheduled four legal scholars today who will share their perspective on what the case West Virginia versus EPA means for the future of administrative litigation. They'll tell us what major questions are, or might be, in the coming months and years. First, we'll hear from Professor Kristin Hickman of the University of Minnesota Law School, where she is the McKnight Presidential Professor-in-Law. Professor Hickman presently serves as one of 40 public members and chair of the Judicial Review Committee for the Administrative Conference of the United States. She earned her JD degree cum laude from Northwestern University School of Law. Following law school, she clerked for the honorable David B. Centel of the United States Court of Appeals for the District of Columbia Circuit. Next, we'll hear from Andrew Averbach, the NRC's solicitor since 2012. As solicitor, he has managed the NRC's docket of federal court litigation, including briefing and arguing the recent Texas, the Faskin versus NRC case. In that case, the Fifth Circuit requested supplemental briefing regarding West Virginia versus EPA, and the purported major questions doctrine raised by Texas. Solicitor Averbach is a graduate of the University of Virginia and the Boston University School of Law, following which he clerked for the honorable Joseph A. DeClarico on the United States District Court for the District of New Hampshire. Our third panelist was supposed to be Lisa Lynch from NRC's Climate and Clean Energy Program. Unfortunately, Ms. Lynch is ill and won't be able to join us. Last, but certainly not least, we'll hear from Professor Jeffrey Lubbers. Professor Lubbers is a professor of practice in administrative law and is also a fellow in law and government at American University's Washington College of Law. From 1982 to 1995, Professor Lubbers was the research director of the administrative conference of the United States where he is now special counsel. He holds a bachelor's degree from Cornell University and a JD from the University of Chicago Law School. So with that, I'll turn it over to Professor Hickman who is appearing by video and she can begin. Kristen, all yours. Thanks, can you hear me? We can see and hear you. Fabulous. Thanks so much to the organizers of this panel for inviting me to participate, including judges Frohlich and Bulwark, but also including my former student, Emily Newman, who I wanted to give a shout out to. I'm proud to say she now works at the NRC. I think that Jeff Lubbers is going to talk about the Supreme Court precedents that the Supreme Court drew on in developing the major questions doctrine. So I don't wanna dwell too much on that history, although I'm sure that Jeff's take on it is at least a little bit different from mine. But let me make just one observation about West Virginia versus EPA and the major questions doctrine reflecting on that history. The major questions doctrine emerged from a series of opinions and extrajudicial writings concerning judicial, concerning judicial deference doctrine generally and Chevron deference specifically. As I read that history long before West Virginia versus EPA, Supreme Court justices like Justices Breyer, Justice Scalia, Justice O'Connor, as well as members of the current court expressed ideas that there are some policy choices that just seem too big, too important or too extraordinary to conclude based on mere statutory ambiguity that Congress intended an administrative agency to have the latitude to pursue those policy choices. To put the point in Chevron eschatite terms, whatever the statute may mean, whatever statutory ambiguity may allow in terms of agency discretion, it clearly didn't delegate authority to the agency to make that particular policy choice. Sometimes the court has framed the question in Chevron step zero terms, other times it's framed the question in Chevron step one terms. Taken individually, some of the Justices have very different ways of approaching the Chevron and Mead steps and they have tended in their opinion writing not to get too persnickety with each other's framing, even if they might write the opinion a little bit differently. So you have to sort of take a lot of that, the precise contours of the Chevron jurisprudence leading to major questions doctrine with a little bit of that in mind. These days though, the Supreme Court isn't citing Chevron so much. So in West Virginia versus EPA, it didn't frame its analysis explicitly in terms of Chevron or mentioned Chevron at all. But the court also hasn't overruled Chevron and I think deliberately so. As I wrote in an essay last fall for Harvard Law Reviews online journal, it seems pretty clear to me at this point that Justices Thomas and Gorsuch don't have five votes to overturn Chevron, but the other Justices also aren't really as interesting in picking a fight with Justices Thomas and Gorsuch in their opinions. So if you decide the meaning of a statute is clear, however you get to that conclusion regarding clarity, then deference isn't an option and you don't need to cite Chevron to use cannons of statutory interpretation and other statutory tools to find statutory clarity. And in the case of major questions doctrine, the Supreme Court is essentially saying that the statute in question, whatever it means, clearly doesn't authorize the agency to do what it wants to do. And that's some of how I think about the major questions doctrine. More important than where we come from and how we got to where we are with major questions doctrine is where we're going with it. As Judge Bollwork observed in West Virginia versus EPA, the Supreme Court described the major questions doctrine as holding that there are extraordinary cases in which the history and the breadth of the authority that an agency has asserted and the economic and political significance of that assertion provide a reason to hesitate before concluding that Congress meant to confer authority on the agency to act as it is trying to do. Let me pull a few more points from both the opinion of Chief Justice Roberts for the court in West Virginia versus EPA and also from Justice Gore such as concurring opinion in that case. First of all, notwithstanding the fears that some have expressed about the potential breadth of the major questions doctrine, my own view is that the court's intention is narrower than that. In addition to the language quoted by Judge Bollwork emphasizing the history and breadth of the authority that the agency has asserted and the economic and political significance of what the agency is trying to do as well as the phrase extraordinary cases. In another passage, Chief Justice Roberts noted the extent to which an agency is relying on modest words, vague terms or subtle devices, rather than more obvious statutory authority or statutory meaning. If we're honest, I think we all know of occasions where facing political pressure in the face of congressional inaction or otherwise pressing circumstances an agency has pushed the boundaries of statutory interpretation to claim authority, maybe even authority that it previously denied having in order to address a particular policy problem through regulatory action. And that I think is what the court is really trying to get at. Statutory boundary pushing in order to do big things where it's not clear that the agency has the authority to do those things. Admittedly, the rhetoric that Chief Justice Roberts uses is fuzzy. It would have been really helpful, wouldn't it, if he had articulated a three-part test or something more concrete to guide us in understanding when to invoke the major questions doctrine. For example, is it enough that the agency's action has major economic and political significance or does it also have to reflect the agency's reliance on modest words, vague terms or subtle devices? For that matter, what does it mean for the economic or political significance of an action to be major? It's hardly, you know, this is not clear. It's fuzzy rhetoric that doesn't provide us with perhaps as much guidance as we might like. But it's also hardly the first time that lower courts have needed to synthesize and paraphrase Supreme Court rhetoric in order to glean legal standards and figure out how to proceed. Justice Gorsuch joined by Justice Alito wrote a concurring opinion in West Virginia versus EPA in which he tried, I think, to be at least a little bit more concrete. He claimed non-delegation and separation of powers principles as the conceptual basis for major questions as a substantive canon of statutory interpretation. He declared that the major questions doctrine functions as a clear statement rule, not as an ambiguity tiebreaker. He offered a non-exclusive list of circumstances in which the court might apply the major questions doctrine and several telling clues for what qualifies as a clear congressional statement authorizing an agency's action. Chief Justice Roberts in his opinion for the court only hinted at some of this. Justice Gorsuch's vision of the major questions doctrine, I think, is substantially more robust and aggressive than anything that the Supreme Court has done in the past that we might label as foreshadowing major questions doctrine. And it's also more robust and aggressive, I think, than the vision articulated by Chief Justice Roberts. But it's also notable that only Justice Alito signed on to Justice Gorsuch's concurring opinion, even though parts of it were clearly written to try to appeal to other members of the court. For example, by citing some of Justice Barrett's scholarly work or citing legal scholarship that Justice Thomas has relied on in the past. Having compared the opinions of Chief Justice Roberts for the court and Justice Gorsuch in concurrence, my best guess is that at least for now the circuit courts of appeal will proceed cautiously in their application of the major questions doctrine. My understanding from conversations with practicing litigators is that brief after brief after brief throws in an argument that various agency statutory interpretations violate the major questions doctrine. And they can do that all they want to, but that doesn't mean that the circuit courts are going to agree. I have no doubt that there is a subset of federal judges who are eager to embrace Justice Gorsuch's robust and aggressive vision for the doctrine. But I don't think that's most judges, at least not yet. And having compared the opinions of Chief Justice Roberts for the court and Justice Gorsuch in concurrence, again, my best guess is that at least for now the circuit courts of appeal will proceed cautiously in how they apply the major questions doctrine. Now it's early days yet and the landscape could change in coming months. But a few weeks ago, I undertook review of circuit court cases citing West Virginia versus EPA or the major questions doctrine. And my findings are consistent with a prediction that we won't see lots and lots of decisions in which lower court judges invalidate agency statutory interpretations on major questions grounds, at least not in the near term. Now in that search, I found 21 cases in which circuit courts had cited West Virginia versus EPA or the major questions doctrine. This is just a very rough sketch of what I saw, but eight of the 21 cases cited West Virginia versus EPA in conjunction with standing or mootness analysis, nothing to do with major questions at all. Several other cases, either in the majority opinion or in a dissenting opinion cited West Virginia versus EPA, but for what I would describe as rather anodyne or uncontroversial principles of statutory interpretation, like agencies only have those powers given to them by Congress, or the importance of reading the words of a statute in context. There was one case that noted that the district court below had relied in part on major questions doctrine and rejecting an agency's interpretation of a statute, but the circuit court reversed that district court decision after concluding that the challenging party lacked standing. So that's the majority of the 21 cases right there. And the handful of remaining cases that cited West Virginia versus EPA or mentioned the major questions doctrine. The circuit courts relied much more heavily on traditional tools of statutory interpretation and the Chevron two-step framework than they did major questions doctrine. In a couple of cases, you had concurring or dissenting opinions mentioning major questions doctrine while the opinion of the court didn't. In a couple of instances, the majority opinion expressly refused to apply major questions doctrine. There were two DC circuit cases in particular, Loper Bright Enterprises versus Raimondo, which concerned an interpretation of the Magnuson Stevens Fishery Conservation and Management Act, requiring industry monitoring of fishery operations and the Washington Alliance of Technology Workers versus Department of Homeland Security, concerning a rule that allowed for a 12-month grad, post-graduation optional practical training program for holders of F1 student visas under the Immigration and Nationality Act. In both of those cases, the DC circuit expressly rejected the applicability of major questions doctrine and instead applied Chevron to defer to the agency's interpretation of a statute. In the latter of those two cases, Judge Karen Henderson at the panel stage and then judges Henderson and Naomi Rao at the en banc stage suggested that the court ought to remand the case to the district court for at least consideration of whether the major questions doctrine was applicable, but they were in by far the minority in both of those opinions. I really only found two cases, both in the fifth circuit, which I understand may be significant for the nuclear waste storage facility rule that was mentioned earlier, but only two cases in which a federal circuit court relied on major questions doctrine at all in rejecting executive branch interpretations of the statutes. And both of those cases involved matters that I would argue were front page New York times type stuff. In one case, Texas versus Biden, the fifth circuit declared that the memorandum authorizing the deferred action for childhood arrivals or DACA program was substantively invalid as an interpretation of the immigration and nationality act at Chevron step one using traditional tools of statutory interpretation. After reaching that conclusion, the court then said in passing even if the statute were ambiguous, DACA would fail at Chevron step two as an unreasonable interpretation because it undoubtedly implicates questions of deep economic and political significance. And there is no clear congressional authorization for the department of Homeland Security to adopt DACA. One thing I will note about that is even though the court's relying to some extent on the major questions doctrine as part of an alternative holding, it's only doing it at Chevron step two. Remember that justice courts such articulated that the major questions doctrine was a clear statement rule, not an ambiguity tiebreaker. And yet here we have the court effectively describing it in terms of resolving statutory ambiguity rather than as a clear statement rule. The other case in the fifth circuit was Louisiana versus Biden, which challenged a presidential executive order requiring vaccination against COVID-19 for employees of federal contractors and subcontractors based on statutory authority contained in the Federal Property and Administrative Services Act of 1949, sometimes called the Procurement Act. The Procurement Act provides policies and procedures for government procurement and contracting efforts and declaring the executive order invalid. The fifth circuit talked at some length about how this executive order did or didn't resemble other executive orders invoking the Procurement Act and conceded that the Procurement Act gave the President quite broad authority over federal contractors. Then the court invoked the major questions doctrine to conclude that the executive order before it was neither a straightforward nor predictable example of procurement regulations authorized by Congress. And on that basis invalidated the executive order. I will note to the side though that two other circuits looking at precisely the same executive order also declared it invalid, but without relying on the major questions doctrine and instead relying purely on traditional tools of statutory interpretation to conclude that vaccination against COVID-19 for employees of federal contractors and subcontractors was just beyond the scope of what anything that Congress might have intended to confer in terms of executive branch authority with the Procurement Act. I guess my bottom line with all of this is that even though it is early days yet and all of this is still unfolding, I'm just not seeing the kind of rampant overturning of everyday agency regulatory interpretations that some people have suggested will happen under West Virginia EPA. And the more I watch what the Roberts court is actually doing, ignoring and putting aside some of the more grandiose rhetoric of a few of the justices as well as a small number of lower court judges and really digging into the details to try to put together the bigger picture of the implications of Roberts court's jurisprudence for the administrative state. I am less and less convinced that the court is targeting day to day run of the mill agency decision making as opposed to aggressive agency boundary pushing when it comes to statutory interpretation. I will finally add that I think it's important to recognize with respect to the major questions doctrine that the court has not said that Congress cannot delegate authority to agencies to do these things, just that in the statutes has currently written Congress hasn't delegated authority to agencies to do the things they're trying to do. Essentially in an effort to try to leave the door open, if not outright prod Congress to amend statutes to expand agency authority to adopt and pursue the kinds of policy programs that they're wanting to pursue in some of these cases. With that, I'll wrap up my remarks and turn it over to our next panelist. Andrew, take it away. Okay, well, thank you. Thank you, Judge Frolick and Judge Bullock for having me. I'll begin with a standard disclaimer that the thoughts I'm offering here are solely my own. I say this in part because I have to, but also because as has been noted, we have a case pending where the major questions doctrine has been invoked and we're still waiting for a decision. In fact, when I was invited to this panel, I don't know, back in November, October, I was under the impression that we'd have a decision from the Fifth Circuit since the case had been argued in August, but here we are and as of the last time I checked my email, we don't have a decision yet. In any event, I'm not gonna shed much light on, any new light on issues that are currently pending before the court, but some background about how the issue came up in the Texas case and how it might come up and play out in the future, I think, is helpful to the discussion we're having today. So the Texas VNRC case has to do with the licensing of a so-called Consolidated Interim Storage Facility for the storage of spent fuel and high-level waste. And that license was issued to the applicant known as Interim Storage Partners pursuant to the NRC's regulations at 10 CFR Part 72. And as I'm sure many of you here are aware, there's another application currently pending before the agency for a similar facility in New Mexico. And potentially, these facilities could provide storage for an extended period of time for a good chunk of the nation's spent fuel pending the licensing and construction of a permanent repository. And these facilities could, of course, be particularly useful for the Reactors that either are in the decommissioning process or that have decommissioned already. So now, why do I say so-called Consolidated Interim Storage Facility? Well, I say that largely because Texas came to court in the Fifth Circuit making the argument that there are really only two types of facilities that the NRC is empowered to license. A production facility and a utilization facility and a Consolidated Interim Storage Facility isn't one of them. And so, Texas asserted that licensing the facility was outside the authority of the NRC and that as a result, the agency had enacted ultra-various. That is, beyond its statutory conferred authority and that as a consequence, it didn't even need to raise an adjudicatory contention before the agency. It could just come straight to the Fifth Circuit. Now, as I mentioned, the Fifth Circuit is considering both the jurisdictional arguments we've raised as well as the substantive arguments about the legality of this decision. And I'll just further note that back in February, so about a month and a half ago, the Tenth Circuit issued a decision, issued a decision which was essentially in a case that's procedurally similar, in fact identical to the Tenth Circuit case where the state of New Mexico had raised a similar challenge to the ISP facility. And the Tenth Circuit said, well, you know what? You didn't come to the agency first. You're barred for essentially failure to exhaust by coming to the agency and the court doesn't have a jurisdiction. But back to Texas, Texas asserted that Congress had not authorized the NRC to issue licenses for away from reactor storage. And this is sort of the critical part of the case. Texas acknowledged that the agency actually has the authority to permit licensees to store fuel onsite, sort of incident to reactor operations, but that storage of an offsite facility was beyond the scope of the agency's AEA authority, particularly given that in a separate statute, the Nuclear Waste Policy Act, Congress had provided a roadmap for the long-term storage of nuclear waste. And Texas buttressed its argument that the NRC lack its authority by invoking the major questions doctrine. And I'll just note that it did this prior to the time that West Virginia was, the VEPA was decided. It asserted in its briefs before the Fifth Circuit that Congress had not clearly provided the authority to issue licenses for away from reactor storage as to the NRC. Not surprisingly, the NRC and the United States defending the case disagreed. And again, we admitted, as Texas argued, that the license issued to ISP was not for a utilization facility or a production facility, but we noted that Texas's fixation on the type of facility had been licensed ignored the fact that the license issued to ISP was not actually a facility license at all. It was a materials license. And we explained that Congress had specifically permitted the NRC to issue licenses for the possession of source, byproduct, and nuclear materials that constituent elements of spent fuel in three separate provisions of the Atomic Energy Act, none of which contain any restriction as to where, i.e., onsite or offsite, that material can be stored. And so once West Virginia came down, we asked for, and the court granted us, leave to file a supplemental brief explaining why the issue did not present a major question at all and why even if it did, Texas's argument still failed because Congress had clearly provided the agency, the NRC, with the authority to issue material licenses of this type under the AEA. And this was really one of the first cases that the government was required to defend after the West Virginia decision where a substantive and substantial major questions doctrine argument had been made. So suffice it to say that we at the NRC and our colleagues at DOJ spent a good amount of time thinking about the issue and how the doctrine might affect both the NRC specifically and federal agencies generally. So I think I'll share a few points, a few important points from our brief as well as Texas's and describe the way the issues have actually played out in real life litigation and how they might play out in the future no matter how the Fifth Circuit rules. First, a few thoughts on the question of whether or not something is actually a major question. One of Texas's primary arguments in the case is that spent fuel storage is politically fraught and that as a result, questions pertaining to spent fuel storage are major and therefore fall within the doctrine. Now, I think Texas is correct when it says that issues pertaining to spent fuel storage are important and politically sensitive. And I think it's probably fair to say that anyone who lives in California or Nevada or New York or Minnesota or Massachusetts or Vermont and really any place where there's a nuclear power plant will agree that, well, yeah, spent fuel storage and spent fuel and nuclear power plants are politically significant questions, raise politically significant questions. But the question isn't in the abstract whether something is politically significant. If it were almost every decision that the NRC makes could be considered a major question. And I don't think that the Supreme Court intended given its emphasis on something having to be an extraordinary case for it to qualify that every single decision of the agency would be classified as major. The question is whether the specific legal authority that the agency is claiming to exercise represents one of vast economic and political significance. And here, as we explained in our briefs before the Fifth Circuit, the question before the Fifth Circuit is actually quite narrow. Is the agency's authority to issue licenses for the possession of spent fuel confined to the property at or adjacent to a nuclear reactor or does it extend offsite? And framed like that, I think it's fair to say that this narrow question about the geographic scope of an authority to store spent fuel and authority that no one disputes that the agency actually has is one that doesn't rise to the level of extraordinary political and economic significance. So again, I think it's important to ask ourselves when we're considering whether or not the major questions applies. What exactly is the question? And to look at that question, not from 50,000 feet about the importance of the subject matter, but rather the precise legal question that's been raised compared to the statutory authority that's been in vote. A related point that we've made in our brief and that our brief really stresses is the importance of the agency staying within its lane. And by that, I mean, this isn't a circumstance where the NRC, which is, as we know, a health and safety agency whose mission is to ensure the safe possession and use of radiologically dangerous material. It's not a situation where the agency is using its authority to mandate vaccinations or to prevent rental foreclosures or to compel conduct that lies outside of its wheelhouse. And so our brief makes the self-evidence statement that it shouldn't come as a surprise to anyone that the agency making decisions about whether and where and when nuclear material can be stored is the Nuclear Regulatory Commission. And if the decision in West Virginia is to be taken at face value, it means that the agency won't be acting in an extraordinary manner when it takes action that's directly related to its regulatory domain in an area in which it has been recognized as the expert by Congress. In many ways, the thrust of the decisions that have invoked the major questions doctrine is that the agency acts at its peril when it goes beyond the four corners of its statutory mandate and does something that's out of its lane and inconsistent with the scope of its expertise, all to achieve ends that lie outside of its wheelhouse, things like using OSHA to prevent the spread of COVID or the power of the Center for Disease Control to impose a metatorium on evictions. These cases present sort of a mismatch between the agency's expertise and the action actually taken. Here, the agency's issuance of a license for spend fuel storage is one of the thousands that the agency has issued to possess nuclear materials. And it's pursuant to a set of regulations that have been in existence under part 72 for more than 40 years. And it's not as the court suggested in West Virginia the exercise of a provision that had been recently plucked from a statutory backwater. And we went to great lengths to emphasize in the Texas case that the NRC's authority to issue interim storage licenses under its statutory authority to regulate the possession of nuclear material had been recognized both by the DC circuit and the 10th circuit in the litigation surrounding the PFS facility back in the early 2000s. So I think an argument can be made in this and other cases that the major questions doctrine isn't a great fit when the agency is taking action that's subject of its own expertise and is designed to further an aim that's consistent with the goals of its organic statute. And when the authority for such action has been recognized over an extended period of time and endorsed by prior judicial opinions. Let me make a few statements too about the second question raised by the major questions doctrine. And that's, well, if the doctrine applies, is it clear that Congress intended for the agency to take the action that in fact took? And a few points on this. First, sort of a pet peeve of mine is when I hear in the press or I hear people characterize the arguments that are being made as, well, here, did the agency violate the major questions doctrine? I don't think that's the right way to look at it because I don't think the major questions doctrine is a rule of law that can be violated. I think it's a way to look at a question and to ask, well, how are we going to judge whether the agency has stayed within its statutory boundaries? If the major questions doctrine is applicable, that doesn't mean that the agency automatically loses. Undoubtedly, it means that the agency can't rely on Chevron deference to justify its authority. But in that circumstance, the question is whether or not Congress has unambiguously authorized the agency to exercise the authority that it's claimed. In any event, we think that it's clear in the Texas case that there's no statutory limitation on the place where Congress said that licensees could possess licensed material. In the Atomic Energy Act, Congress provided that the agency has the authority, as I said, to issue licenses for the possession of source, byproduct, and nuclear material. And while it certainly has the power to say, well, you can't store it here, you can't store it there, that's a matter of the agency's judgment that was given to it by Congress. Not something that Congress has somehow mandated. Nowhere does the statute confine its authority to co-location with a reactor facility or compel the agency to limit the location of the manner and possession in the manner that Texas has suggested. In other words, it's not the NRC that's reading additional powers into the agency's statutory authority. It's Texas that's imposing atextual geographic limitations. So I think we need to be asking, wary of arguments that the agency has somehow, or we need to be wary of arguments that the goalposts have been moved, of the type Texas makes, where it's saying, oh, well, there's some additional atextual consideration that rises to the level of an ambiguity, and that because of that ambiguity, the major questions doctrine should be invoked. Now, I'd be remiss if I didn't acknowledge that there are at least some statutory limitations on the agency's authority to issue licenses to possess nuclear materials, and that these limitations at least arguably create other major questions or non-delegation doctrine concerns. Among other, Section 53 of the Atomic Energy Act authorizes the NRC to issue licenses for special nuclear material for three different purposes. First, there's really two provisions, but collectively for the conduct of research and development. Second, for use under a production and utilization facility license. And third, and this is the key one, for such other uses as the commission determines to be appropriate to carry out the purposes of the Atomic Energy Act. Now, this last limitation raises a few questions that I think are germane in these types of cases. It's apparent that this last phrase constitutes a potentially broad grant of authority, which enables the agency to determine for itself what uses are appropriate to carry out the purposes of the AEA. But again, identifying the purpose that's consistent with the AEA is something that lies at the core of the agency's expertise, and deference to the agency's technical judgment about how to ensure the safe and secure operation of the nuclear industry, consistent with and in furtherance of the Atomic Energy Act, has been a hallmark of the case law that has upheld the agency's decision-making authority. So limiting the agency's authority under this provision to research and development or to nuclear power plants or production and utilization facilities, or to things that are somehow directly related to these areas, would be contrary to the broad authority that Congress conferred upon the NRC elsewhere in the AEA, and that courts have routinely and historically have recognized. And I'll leave with the observation that in support of our argument that the exercise of the agency's authority in this matter is warranted, even if the major questions doctrine is applicable, we cited in our brief a 2022 case called Biden v. Missouri. And in that case, the Supreme Court upheld at the preliminary injunction stage a rule that required recipients of Medicaid and Medicare funding to have vaccination requirements for healthcare workers. HHS had promulgated this rule pursuant to a statutory provision that authorized the secretary of the agency to enact rules. And I'm quoting here as maybe necessary to the administration of the functions with which the secretary is charged. And in that case, that the Supreme Court declined to issue a preliminary injunction stating the rule, essentially concluding, well, that type of rulemaking lies within the core of HHS's function, and therefore is a legitimate exercise of that authority. I think there's an analog between the rule upheld in Missouri and the NRC's issuance of rules and licenses pursuant to a broad grant of statutory authority as here, which the agency has the power to define. And particularly in a domain in which the agency has expertise and a historical record of regulating. Obviously, there has to be a reasonable nexus between the agency's need in claiming this authority and some end that the Atomic Energy Act is designed to further. But there's nothing in the case law that compels strict scrutiny over the agency's determination that action is, quote, appropriately tailored to advance the aims of the Atomic Energy Act. And I think it's fair to say that the commission's recognition that increasing storage space for the storage of spent fuel would both permit decommissioning and facilitate plan operations, and that that's enough to justify the agency's authority to license away from reactor storage under the Atomic Energy Act. Now, it's true that four justices dissented from the court's conclusion in the Missouri case, but Justice Kavanaugh and Chief Justice Roberts who were part of the West Virginia majority joined the majority opinion in Missouri. And I'm hopeful that at least one of them, and perhaps some or others on the court, as well as hopefully two judges on the Fifth Circuit, would distinguish what happened in West Virginia from the routine exercise of the NRC's authority that we've seen in the consolidated and termed storage cases. And so, while I think the major question is doctrine is something that the agency needs to pay attention to, it's also true that the agency is on its firmest footing when, as in these cases, it takes action that lies at the heartland of its expertise and that is consistent with judicially affirmed historical practice. Thank you. Thank you, Andrew. Jeff, please. Thank you very much, Judge Frohlich and Judge Bulwark for inviting me to participate in this very important panel. I do have some major concerns about the major questions doctrine. And I guess my view is a little bit more jaundiced about it than Professor Hickman or maybe I'm just more worried about its future application than she is. But I think that even the possible specter of the application of what I'll call the MQD here to the NRC's decision to grant a license to a private firm to store spent nuclear fuel in secure canisters shows just how potentially wide ranging and debilitating this doctrine could be to all manner of health, safety, environmental and consumer regulation and even licensing decisions and rules granting benefits such as the one at issue when the recently argued student loan forgiveness case. But I also want to say that the MQD is just one arrow in the Supreme Court's quiver that it is using to chip away at the power of the so-called administrative state, which itself is a pejorative term that the court has increasingly used to describe the executive branch of our federal government. So let me mention some of the other arrows first because some of them also could be aimed at the NRC. I'll be brief on these but we'll be happy to expand on them during the discussion and Q&A. First, the court has been whittling away at the basic concept of independent regulatory agencies like the NRC. Although Humphrey's executors upholding of the independence of FTC commissioners is still standing, the court struck down the independence of the public company accounting oversight board members in the 2010 free enterprise fund case on the ground that because the PCOB members could only be removed for cause by the SEC, that amounted to unconstitutional double for cause removal protection, which was something that the court kind of invented in that case or maybe Judge Kavanaugh did in the DC circuit. But as Justice Breyer observed in his dissent in that case, it was a formalistic decision that didn't really help the challengers at all. They didn't really win anything in that case or even the president in practical terms. It just deprived the board members of their for cause removal protection. And while doing that managed to call into question the similar double for cause protection of administrative law judges who happened to serve in independent agencies such as the NRC. A second whittling away at independent agencies occurred in 2020 and 2021 when the court held in CELA law versus CFPB and Collins versus Yellen, that Congress could not provide for cause protection for agency heads of agencies with a single director like the CFPB and the federal housing finance agency. So now only multi-member boards and commissions can be made independent by Congress. Moreover, several justices have made it plain that their bigger target is the reasoning of Humphrey's executor itself. And a few weeks ago, the court granted cert on a case in which the Fifth Circuit found the CFPB's funding to be unconstitutional because Congress has provided for some of its funding from non-appropriated funds. Will this call into question the funding of numerous agencies like the NRC that rely in part on user fees for their funding? We don't know. Second, as I just hinted, the court has seemed to invite a challenge to the independence of administrative law judges, first by declaring them to be inferior officers in the 2018 case of Lucia versus SEC, and now by granting cert on the issue of whether challengers to the constitutionality of ALJs or even commissions have to exhaust their administrative remedies before bringing such structural challengers in court. The Fifth Circuit and One DC Circuit judge have already found ALJs to be unconstitutionally protected from removal, and I expect that issue to be before the court as soon as next term. These cases also bring up the role and independence of the Merit Systems Protection Board as the adjudicator of actions taken against ALJs and even rank and file civil servants. Third, the court has clearly signaled its interest in reviving the non-delegation doctrine. As you probably know, the court has not struck down a federal statute for a lack of an intelligible principle since 1935. But in the 2019 case of Gundy versus US, four members of the court declared their interest in ditching the intelligible principle test for something stronger. And in that case, it was a four-four court, so Judge Kavanaugh had just joined the court and did not participate in that case. Justice Alito agreed with the majority to uphold the statute even though he talked about his misgivings. However, the hard question for these justices who want to do that is, what would a new non-delegation doctrine look like? What would be the new test? This is not so easy to craft because invoking that doctrine means a holding that the statute itself is unconstitutional and the bluntness of that remedy is probably a big reason why it has not been successfully invoked since 1935. Fourth, the court seems to have largely abandoned judicial deference to agency interpretations of their own statutes or regulations. As to regulations, in the 2019 decision in Kaiser versus Wilkie, the court in a five-four decision with Chief Justice Roberts casting the deciding vote on Starry DeCise's grounds decided not to abandon the doctrine first articulated in the court's 1945 decision in Bulls versus Seminole Rock and Sand Company and also unanimously reaffirmed, in a Scalia opinion, an hour versus Robbins in 1997, which is why it was called the hour doctrine, that the court must defer to any agency regulatory interpretation unless it is, quote, plainly erroneous or inconsistent with the regulation. In Kaiser, although these precedents were not overruled per se, the court created a new five-step inquiry that will make it significantly more difficult for an agency to obtain that deference. And then, of course, there is Chevron, the famous case that held a court should defer to reasonable agency interpretations of ambiguous terms in their own governing statutes even if the court might not have found that to be the best interpretation. The Supreme Court seems to have largely abandoned the Chevron doctrine without specifically overruling it since it hasn't been cited by a majority of the court to uphold an agency interpretation since 2016. So with all these examples of decisions that basically limit agency powers, it is perhaps not surprising that the court has found an even more surgical tool to accomplish this broader agenda with its retooling of the major questions doctrine. It's clear that the MQD, which was only anointed as a doctrine in West Virginia versus EPA last term, has rapidly attained the status of a powerful tool for judges who are deeply skeptical of administrative regulation. The court itself traced its lineage to the MCI versus AT&T case in 1994 when the term modify was being used by the FCC to work a big change in what companies like MCI and AT&T had to file in their rate makings. And the Brown and Williamson tobacco case in 2000 when the court first suggested that the, in these two cases, when the court first suggested that the importance or the enormity of the issues involved in the agency's interpretations of their own statutes in those cases should be one of many considerations to be used in statutory interpretation and in undertaking the Chevron two step analysis. Then in King versus Burwell, the Obamacare case, Chief Justice Roberts pointed to the importance of the question of whether that act should be interpreted to allow for buyers of insurance from the federal exchange to qualify for the same tax credits as buyers from state exchanges. And because of that importance of that question, he decided not to apply the Chevron doctrine at all. And this was, so this is kind of a Chevron step zero decision, but in the end he upheld the IRS's interpretation in his de novo review. So the major questions analysis such as it was then was invoked at various stages of the Chevron analysis at step one, step two or step zero. To me, that was a little questionable since if you have a Chevron doctrine, why wouldn't you use it in important cases? But little did I realize that six years later during the pandemic, the major questions issue would morph into an Omicron like variant that allowed the court to overrule the CDC's anti eviction rule, OSHA's emergency vaccination or test requirement for large employers, as well as EPA's clean power rule in West Virginia, despite statutory language that seemed to provide authority and a lot of discretion to the agencies for each of those actions. This version of the MQD, which Cass Sunstein has called the strong version, has the potential to swallow the Chevron doctrine in that it actually, if you look at it, is really the reverse of Chevron. When a statute is unclear concerning a major action, instead of granting Chevron deference to the agency's reasonable interpretation, the court under the MQD is now supposed to find that a lack of a clear statement by Congress is reason enough to set aside the action without any further analysis. It is also interestingly obviated the need for judges to invoke the much blunter tool of the non-delegation doctrine. As Mila Sahoney pointed out in our excellent Law Review article in the Harvard Law Review about the quartet of recent MQD cases, the new version of MQD enables courts to skirt the pitfalls of the non-delegation doctrine. It gives courts a basis for invalidating the most important exercises of delegated authority without requiring a finding that the entire statute is an unconstitutional delegation. All they have to do is find that the action is a major question and then find a lack of a clear statement from Congress authorizing that action. So it's a much more surgical tool. The problem, of course, as Professor Hickman pointed out, is the MQD's indeterminacy. We really don't know what major means in this context. Some of the decisions limit the doctrine to questions of, quote, vast economic and political significance, while other formulations seem to leave out the word vast. And Justice Gorsuch has turned the and into an or in his concurrence in West Virginia, economic or political significance. Some have even suggested that we should use the definition of major used by OMB in its review of regulations, as ratified by the Congressional Review Act, a regulatory action with an impact of over $100 million on the economy. But that benchmark was set by Jimmy Carter in Executive Order 12044 in 1978. In today's dollars, that would be $475 million. Insuing executive orders on rulemaking did not index that figure to inflation, so it's still set at 100 million. Would any rule that has over 100 million of impact on the economy thus be within the major questions doctrine? I think that would be extremely debilitating to health safety, environmental and consumer regulation. I listened to the oral argument in the NRC's Fifth Circuit case on interim waste storage licensing. And I thought that the Fifth Circuit seemed more interested in garden variety statutory interpretation questions than in the MQD. They only gave it a passing mention. Probably because the NRC's supplemental brief did such a good job of arguing that it should not apply. Or maybe, despite Mr. Averbach's persuasive advocacy, it's because the Fifth Circuit panel, which seemed pretty skeptical of the NRC's statutory argument, can simply rely on their interpretation of the interplay of the two statutes involved, the AEA and the NWPA. They also asked some questions that indicated that isn't this just a new version of the Yucca Mountain rule or requirement? So they seemed to think it was fairly important to say the least. I also listened to the Department of Education's Supreme Court case on the Loan Forgiveness Program a few weeks ago. And there the government was met by extremely skeptical questioning revolving around the political and economic importance of that program. This was true despite the fact that by definition, actions taken under the HEROES Act have to be in an officially declared emergency. And that therefore the bigger the emergency, the bigger the relief would have to be. And accordingly the more major that action would have to be too. Now we know that many litigants against the government these days will likely claim that the government's action is a vast economic or political significance. I hope Professor Hickman is right that the courts will not buy that argument too often. We may get a better idea from the NRC case and the Student Loan Forgiveness case what the boundaries are of the MQD. But at this point it seems to be a highly effective tool in the hands of a court majority that wants to rein in administrative agencies and reinvigorate its formalistic approach to separation of powers. Now I just want to make one last point. In the last decade or so there have been many failed attempts by conservative members of Congress to enact legislation that they labeled regulatory reform bills that would have also debilitated the rulemaking process or tough in judiciary view. For example, the Regulations in Need of Scrutiny Act known as the Rains Act which would require both Houses of Congress and the President to approve affirmatively any major rule before it could go into force. How often would a major rule be approved when we have a divided White House and Congress under that law? Very rarely it seems to me. Or the Regulatory Accountability Act a bill that would substitute for the current APA Section 553 a new version that is approximately 10 times longer and would add 60 new procedural and analytical requirements to the agency rulemaking process. Or the grandiosely titled Separation of Powers Restoration Act which would forbid reviewing courts from giving any deference to agency legal interpretations meaning that every review would have to be de novo. Each of these three bills passed the GOP controlled House of Representatives several times in the past and probably will again this session but they died in the Senate. Yet the Supreme Court's anti-regulatory decisions have accomplished much of what these bills sponsors have intended even though the irony is that the court tends to find the failure to pass debated legislation to be an indication that there is no clear statement from Congress on that question. Thank you. Thank you. I wonder if any of the panelists want to respond to anything they heard from other panelists. So before we take questions from the audience I'd like to recognize Professor Hickman. You know since I got since I went first and you know as always Professor Lubbers and I don't see I had a lot of things but you know I want to just make a couple of observations with respect to his remarks you know first that I didn't realize that administrative state is now a pejorative you know but you know to the extent that I use that term I didn't intended pejoratively just descriptively. Let me make a couple of observations here though. I am not going to deny at all that there are members of Congress that say you know and propose legislation that would have devastating effects on how administrative governance functions. A lot of these pieces of legislation have been around for at least a decade if not longer. Yeah they may have passed the House here or there or they may have been reproposed every time we have a new Congress but I think the reason they haven't gone anywhere is precisely because they would be so devastating. They're performative more than they're truly something to fear along with that. I'm not going to deny that the Supreme Court through a number of opinions including Lucia including Sayla Law including Gundy including Kaiser is shifting in a more formalist, more originalist, more textualist and more skeptical of government agency's direction. But there is a difference between the occasional grandiose rhetoric and what these decisions actually do and the implications that they have for day to day administrative governance. Every time the Supreme Court says something about the way Congress structured this or that agency or position within the executive branch is unconstitutional. The Supreme Court then goes out of its way to find a remedy that essentially leaves the status quo going forward relatively unchanged for example in Lucia, sure declaring that administrative law judges were improperly appointed that constitutionally their inferior officers and therefore have to be appointed in a manner consistent with the appointments clause. And then accepting ratification of the SEC's ratification of the appointments of all of those administrative law judges and merely remanding the action before the court back to the agency to reconsider. Essentially the same thing happened in the PCAOB case. I suspect once we get to a challenge regarding the appointment of social security administration administrative law judges or FDIC administrative law judges on grounds that their principal officers who need to be appointed by the president with the advice and the consent of the Senate. Excuse me, but I'm highly skeptical that the Supreme Court is actually going to embrace any kind of action that is going to blow up the administrative state. Sure, we can take some of the rhetoric of the court and we can extend it out to the nth degree and we can recognize that some justices, I would suggest it's not a majority. I would suggest it's more like one or two would be delighted to blow up most agencies. But that isn't what's happening. And I think rather than, I'm not saying we shouldn't keep an eye on what's happening. I'm not suggesting that we shouldn't take seriously some of the things that the justices have said, but I am suggesting that the sky isn't falling and that the more apocalyptic pronouncements of what the court is trying to do actually are doing more harm than good when it comes to, they're not only not consistent with what's happening on the ground, but they're doing a lot of harm, genuine harm, I think, in whipping up some of our more irresponsible rhetoric all the way around. I really wish people would calm down and be careful about the rhetoric that they use in describing what is actually happening with administrative governance and Supreme Court decisions because I don't think the sky is falling. I don't think the Supreme Court is going to blow up administrative governance. They haven't yet and all signs when you really dig in the details are that it's very unlikely they're going to do so even if they managed to shift the doctrine a little bit. I guess that makes me chicken little. And I wasn't trying to be apocalyptic. I was maybe a little provocative, but not apocalyptic. Well, you're right, Jeff, you were more provocative than apocalyptic, but you've got to admit that some of our colleagues get up, you don't have to go too much further in the rhetoric to get apocalyptic. Right, and I was trying to be a little bit more descriptive, but I think I do worry a little bit more, especially since there are other decisions down in the Fifth Circuit that have been really extreme and that we haven't even talked about and are likely to make it to the Supreme Court too. So the Supreme Court's going to be confronted with a lot of these decisions in the next few years, I suspect. I'm not worried so much about, when you mentioned the Lucia case, I thought that decision was basically correct. And it's just that, and I don't think that there's going to be a problem with the appointment of SSA ALJs or any other agency ALJs anymore, but it's the removal protection of the ALJs that I think is potentially at risk because there are real questions about whether or not their fore-causing removal protection can be sustained, even if they're not working in an independent regulatory agency, because you have a decision like in the Fleming case where the Department of Agriculture ALJs removal protection was at issue. The panel did not decide the case, but Judge Rao wrote a guest dissenting opinion saying that she thought that even though the ALJ was in an executive department, the fact that the ALJs removal protection is subject to adjudication by the MSPB, which is an independent agency was enough to make that judge's removal protection unconstitutional. So I'm not completely pessimistic about the Supreme Court on this question because I think it would be such a huge step and a really unfair, it would just promote unfairness to take away the ALJs independence, but there are opinions by judges that just basically draw a straight line from free enterprise fund to doing that, notwithstanding the fact that the court dropped a footnote in that case saying we're not talking about ALJs. So we'll see, I think that's a big test to see how apocalyptic I should be. I hope the court doesn't go that far, but I suspect that four justices might, and if you only need one more, so we'll see. But I think members of this audience, especially if they work at the NRC should be informed about some of these decisions. Absolutely they should be informed about them. I just don't think that they should get too terribly worked up about them yet. Thank you. Why don't we take a few questions that have come in virtually, and I'd ask the whole panel, do you think the NRC is uniquely situated among federal agencies due to the technical nature of its expertise and history of broad deference to the agency by Congress and the courts to insulate NRC decisions from an early or heavy application of that major questions doctrine? Yes. I think I would say yes too. I mean I think even before Chevron, the courts look to think factors like that in determining whether to give deference to a particular agency like the NLRB, which was set up to decide labor cases or the NRC now. So I think that even if Chevron goes away, even if the MQD becomes more established, I think the NRC is somewhat better situated than other agencies. So I will add here, I'm a tax attorney by training and I've spent much of my academic career arguing against tax agency exceptionalism and they have a lot of expertise too. So I'm not sure that I would necessarily say that NRC is uniquely situated in this regard. I think what I would be more inclined to say here is that along the lines of some of the comments earlier, while it's not quite right to say that the things that NRC does are, it's certainly not right to say that anything that NRC does isn't politically consequential or things like that. I mean these things are politically sensitive and the NRC deals with very important issues. Nevertheless, I just don't think most of what the NRC, if anything the NRC does, rises to the level of front page New York Times extraordinary case kind of kinds of political and economic significance in a way that NRC needs to be particularly concerned that the Supreme Court is real or even the lower courts are particularly interested in intruding upon their sphere. I think one other thing is that might help the NRC, especially if we're talking about the new part 53 regulations which was mandated by Congress as I understand it. So Congress is requiring the agency to issue a rule. I think in those circumstances, maybe the MQD would not be as much of a barrier if it's pretty clear that Congress mandated that the agency issued the rule in the first place. Now of course the agency would have to stay within the bounds of the statutory mandate but I think the MQD would be less of a worry in that situation. I would just add that we've gotten a lot of mileage for sure arguing that we're a little bit different. One of the reasons for that is because we're a technical agency and we often ask the courts to defer to our technical judgment. Another I think is because we're an independent agency and not all agencies can state that. And then I think too, and this goes with the independent, with the technical nature of what we do, I think there's a recognition that the agency's decision making is best not only left to the experts but left outside of the political give and take. And again we've gotten a lot of mileage out of that in the courts with various courts saying things along the lines of well the agency is virtually unique in the extent to which the AEA confers upon a broad authority to implement the goals of the statute in the manner it sees fit. So personally I hope that doesn't change but I'm aware that other agencies could state the same thing or make the case the same way. In that regard, I mean EPA has already fallen victim to it if you want to put it that way too, the major questions doctrine. And in the past couple days they've come out with some fairly major proposed rules or major rules dealing with PFS forever chemicals and now the new clean air act rule on nitrogen oxide emissions. Does that give the NRC any cause of seeing what's happening with the EPA which has expertise as well. So is that, there's something different about us in EPA but we're not independent, they're not independent of regulatory, is that the big difference? That's the one thing. I mean I think that the EPA regulates a lot more entities than the NRC does. We issue licenses and there's a very finite number of licenses, even materials licenses aren't, don't number into the millions or whatever. So I think in that sense we're not acting as broadly and I think because of that maybe we escape a little bit of the scrutiny that EPA might. But I think also OSHA's rule that got struck down was they had pretty clear authority to issue temporary emergency standards and keep an eye on the student loan forgiveness case because the Department of Education had pretty clear authority to issue waivers when a national emergency had been declared. And so there was a lot of discretion in that statute for the Department of Education. It's, they also made the argument that this was unlike the CDC's eviction rule. Education, we had education or staying within our lane just like you argued it in your case in the Fifth Circuit. So we just don't know, we need to see a few more decisions before we can figure out what the boundaries of the major question doctrine are. One of the things that Ms. Professor Sahoney pointed out was that Justice Gorsuch tried to give a couple of examples of some non-major questions. I think he did it in the Gundy case and they only mentioned two examples, a case involving designing oleomargin tax stamps or specifying standards for imported tea. He acknowledged that those were not major questions. I do think though, Jeff, I mean, you at least have to concede that in both the OSHA case with the COVID vaccination and in the student loan case, there are really good arguments for the idea that both OSHA and the Department of Education have gone beyond their statutory mandates, have actually pushed that statutory envelope in order to reach the conclusion that they have the authority to act. I mean, maybe there's a colorable argument in support of them having authority, but there's at least an equally colorable argument that they don't. Wouldn't you have said the same thing about Massachusetts versus EPA? Yep. CarbonDocs, that EPA is no, I don't think that case would have come out the same way under the major questions doctrine and EPA wouldn't have the authority to regulate carbon dioxide at all, right? Yep. Okay. We'll take another question. This one was directed to Andrew, but any of our panelists can chime in. Question reads, I don't believe the Atomic Energy Act refers to fusion, but about 15 years ago, based on a staff recommendation, the commission asserted jurisdiction over fusion reactors. That's never been challenged. If someday it is, would that fall under the major questions doctrine? I mean, certainly you could make an argument to that effect, but again, one of the things I said that I'll stand by is that you have to look at the specific statutory provision we're talking about and then determine whether or not the exercise of the authority claimed under that provision, whether or not the broad interpretation of that provision is itself a major question. Let's not just talk about, oh, is fusion important? Is fusion this cutting edge thing that can transform society? Because now we're off running about how, without any defenses that it's not an important political question or economic question. So I really, I think it's important to confine our analysis to the specific statutory provision that the agency is operating under, and then to say, hey look, is that what Congress wanted the agency to do when it, or at least conceivable, we might have thought the agency would do when it enacted the particular provision granted in the agency authority. And even in those types of statutory provisions that grant the agency some bit of discretion that say, oh, to take such action as the agency considers appropriate under the circumstances, even with respect to those types of discretionary provisions, it's necessary to look at the statute itself, look at the provision, and look at what Congress was at least considering when it made that decision. I would hope that if a court ruled that you didn't have authority over a nuclear fusion that Congress would immediately step in and amend the statute to give you that authority. And that's kind of a cure-all for all these problems except that it's so hard to pass legislation these days that it's not always a possible cure. Which raises an interesting question. Should the Supreme Court base its decisions on Congress's inability to get its act together? No, they should take that into account, shouldn't they? We've seen it. I don't know, I mean, is that, you know, that's something, I'm posing the question, but I don't know that I have an answer for it. I don't know that I do either. Because I haven't really thought of it in these terms before, but it raises an interesting question of whether the Supreme Court should interpret its own authority by reference to the practical difficulties of Congress to actually do its job. I mean, this came up in the Voting Rights Act too, where Chief Justice Roberts basically said it's up to Congress to, you know, fix, to come up with a better statement in the statute, but Congress is sort of paralyzed from doing so. Let me put this a slightly different way. The staff paper that talks about fusion makes three recommendations. There's potentially on how to do it, but there's also some talk about the need for legislative action. If the agency were to take, ask for legislation rather than say promulgating a lot of regulations and they don't get it, where does that leave you then? Well, I mean, this came up in the Texas case and, you know, Texas said, hey look, here are these types of statutes that are kind of similar to what the agency is purporting to accomplish here and Congress never enacted them. So, you know, therefore we should infer that Congress didn't want the agency to do this. And, you know, if the agency is asking for different authority, or no matter how small a difference, I think it's relevant that, you know, it may have the authority, but it may want to expand that authority, it may want to change that authority. I think, I don't think you can just say flat out, well, just because the agency thought about going to Congress, maybe it even did, that therefore it doesn't have some other authority which is related to what it wants to do. I would agree with that, that you don't want to make any categorical statements or conclusions with respect to either, you know, a call by an agency for congressional action or by Congress trying and failing to enact legislation. You know, the context matters and the devil's in the details of these sorts of situations. And so, while it may be relevant, it may be part of the discussion with respect to the agency's authority. I don't think either of those things could be dispositive as a categorical matter. I also think that, you know, many times an agency or, you know, a Congress person might seek legislation as a sort of belt and suspenders kind of thing and not because the agency lacks the authority, but just to resolve any ambiguity or to give certainty to regulated parties that, hey, what the agency is proposing to do is within the statutory authority. So it's not to find ourselves years down the road with millions of dollars expended that, oh yeah, that license you issued actually lacks statutory authority. Right, I mean, in some of these cases, you have statements outright from agencies. We don't have the authority to do X. We need Congress to act so we can do X, whereas in other instances, you simply have agencies expressing, you know, sort of a question, you know, or exploring what is the scope of their authority and having good arguments that they do have authority, but nevertheless saying it would be helpful if Congress were to clarify. And those are two very different contexts, right? Yeah, so in Brown and Williamson, the FDA had said that they didn't think they had the authority to regulate tobacco and that came back to bite them during the Brown and Williamson case. And this is the problem with the major questions doctrine because if you make the admission that additional clarification is warranted, then if it turns out to be a major question, you lose, right? Well, no, because it depends too. I mean, for all of Gorsuch's, Justice Gorsuch's, you know, Adam and C that, you know, that the major questions doctrine is not an ambiguity tiebreaker, that it's a clear statement rule. At least thus far, we have, you know, examples of the contrary, both, I think, from the Supreme Court and from the circuit courts, you know, where they're more inclined to evaluate, you know, they're more inclined to use other tools or they're more inclined to require some higher level of ambiguity, sort of. I sat and listened to a Supreme Court argument once in a case called home concrete where the justices were talking about ambiguity in the Chevron sense being a term of art that not every ambiguity rises to the level of Chevron type ambiguity that requires deference. So simply because an agency expresses some question, you know, about a lack of clarity in the statute and a desire for Congress to act to, you know, in a built in suspenders type way to confirm that their interpretation of the statute is giving them authority is accurate. I don't think necessarily means that the major questions doctrine gets in vote to smack them down. Nevermind the fact that the question has to be of major economic and political significance in the first place. I have a question that has come in directed to Professor Lubbers, but the panel can answer. Justices like Kavanaugh have recently seemed supportive of Humphrey's executor when discussing independent agencies. Do you think Humphrey's executor is in danger of being overturned with the current court? I think there may be five justices who would be willing to do it if it came to that at this point. I think the reasoning of Humphrey's executor has been criticized for quite a while because as you recall, the court said that the FTC was different from an executive, purely executive agency because it had quasi adjudicative, quasi judicial quasi legislative functions. Well, that distinction doesn't work anymore because Attorney General has both of those as well. I mean, most agencies do. So you also have the case, the Wiener case, which involved the War Claims Commission, which had a statute that didn't even mention forecausing removal protection for the commissioners, but the court read the statute as having that in there and upheld the independence of that body because it was purely adjudicatory. So I don't know. I mean, I think, I don't really think the court would wanna go that far. I'm Justice Roberts, Chief Justice Roberts probably wouldn't, but he's not the swing justice anymore. So I think it's sort of 50-50. I think it's a lot less likely than 50-50. I think you've got two justices on record, as I recall. I can't remember. Justice Thomas wrote his concurring opinion in Sala Law, suggesting that Humphrey's executor ought to be done away with. I can't remember if Justice Gorsuch joined him or not, honestly, but one of the things you have to keep in mind, I think, is that if we were starting from scratch, I think Professor Lubbers is absolutely right that at least five justices on the court would not have decided Humphrey's executor the way that it was decided. But I do think, at least in the separation of powers context, that you have as many justices, if not more justices, concerned about story decisis and not wanting to overturn too much, then you have justices who are ready to burn it all down. Yeah, I think, as you made me think about it a little bit more, the Free Enterprise Fund case did say that one layer of Forecausing Rule of Protection was constitutional in that case. And that was the SEC, which didn't even have it in its statute. So, but that was 2010 and we have three new justices since then. So, maybe you're right that story decisis would be a stronger force in that situation. I mean, look, yeah, because in both Sala Law as well as Free Enterprise Fund, as well as some of these other cases, you do see a lot of emphasis placed on not overturning existing precedents. Don't get me wrong, that leaves a lot of latitude because we just don't have that many precedents in these areas, but nevertheless, there's so much emphasis placed on not overturning them, even if we don't give full effect to every bit of rhetoric that was in those opinions. I will say that. Every bit of analysis. So, I think the courts very carefully trying to, on the one hand, put forward a more formalist interpretation of separation of powers principles and trying to draw some lines around past precedents to not go any further. But on the other hand, I think that they're trying very hard not to overturn those precedents or blow anything up. Yeah, so the newly invigorated FTC, which is doing antitrust rulemaking now and being much more active in the enforcement area, I think is going to lead to more constitutional challenges to the FTC, both with respect to whether it even has antitrust rulemaking authority and whether that's a major question and whether the commission is still constitutionally structured, et cetera, et cetera. So I think the FTC is going to be subject to challenges and that may raise the precise issue of Humphrey's executor. Sure, but I also think that there are sub-constitutional mechanisms to rein in the FTC if that's the Supreme Court's goal. For example, by reversing what is just DC circuit precedent in terms of national petroleum refiners regarding the scope of FTC rulemaking power. Yes, I agree. Okay, thank you both, thank the panel. I wanna thank the audience, both those in person and those of you who are watching remotely for your attention and the thoughtful questions that stimulated the discussion we've had here. But I especially wanna thank our distinguished panel for sharing their thoughts and perspective on this very timely subject. Time will tell the ultimate direction the courts will take in their review of cases involving greenhouse gases, interim storage facilities, and a host of other administrative agency actions. The economic and political significance of congressional delegations will be challenged and the extent to which clear congressional authorization exists for agency actions will no doubt be raised time and again. With that, I would just go through a couple of housekeeping matters. Your feedback is important to us. Please let us know how you thought the RIC went this year. Your insights will help us shape next year's program and you can provide your feedback through the platform by selecting the feedback tab in the session or by addressing, by assessing, accessing the link from the RIC website. I've also been asked to announce that the American Bar Association's Nuclear Law Committee is hosting an informal meet and greet in the first floor bar of the hotel. Feel free to stop by if you wish and thank you all for your attention and your presence here today. We stand adjourned. Thank you.