Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power?

The 2022 US Supreme Court case West Virginia v Environmental Protection Authority (EPA) has raised serious questions in relation to the extent to which a court can kerb executive power. In that case, the US Supreme Court majority of six judges propounded a novel ‘major questions’ test which effectively prevents the executive arm of government from making subsidiary legislation in the form of rules and regulations that address ‘major questions’ that would only be appropriate for the legislative arm of government (i.e. in the US, Congress) to address. More particularly, in this case, the US Supreme Court majority, after applying its ‘major questions’ test, found that the EPA, although charged under enabling legislation with a broad mandate to reduce emissions, lacked authority to make rules which required ‘generation shifting’ by emitters to reduce emissions by changing from one type of power generation to another (e.g. coal to renewables) on the basis that this was a ‘major question’ that Congress had reserved only to itself to address. The dissenting US Supreme Court minority of three judges said this test was not reflective of long established statutory interpretation principles, and was effectively a ‘get-out-of-text free card’ which the majority had devised to deploy whenever the objects of an Act were at odds with the majority’s conservative ideological views (in this case climate change scepticism). This Chapter analyses the decision in West Virginia v EPA and the ‘major questions’ test developed by the majority and its effects on executive power, in particular in the area of combating climate change. Given the US Supreme Court is the highest appeal court in the US, potentially it could impose its will to block any legislative attempt to confer power on the executive to combat climate change, no matter how explicit those powers are, simply by interpreting such powers away—especially considering the fact that there are no constitutional constraints given that the US Constitution is all but silent on the environment. This Chapter also examines if such judicial interference could similarly frustrate executive action in combatting climate change in Australia and India given their constitutions’ different treatment of the environment to the US and cautiously concludes that while there are no constitutional guarantees in those jurisdictions against such judicial interference, it would be significantly more difficult for courts in those jurisdictions to deploy ‘get-out-of-text-free-cards’ in the way the US Supreme Court majority has.