The Major Questions Doctrine (MQD) undoubtedly presents a limitation on agency power and signals a new era of administrative law. Agencies should proceed cautiously with provocative action. With the current makeup of the Supreme Court, litigation would likely result in even tighter judicial constraints. However, the MQD is a death sentence neither for creative and innovative rulemaking, nor for executive branch-driven climate policy. USDA’s ability to mitigate climate change through commodity subsidy programs exemplifies an area where bold, agency-led climate action is still possible, even after West Virginia. Through its authority to condition commodity subsidy eligibility on producers’ maintaining their land with “sound agricultural practices,” USDA can tie subsidies to carbon sequestering practices. USDA could look even further into other areas of untapped discretion in its statutory authority. For example, USDA could potentially leverage other major program areas—like federal crop insurance programs—to tie federal benefits to producer carbon sequestration.
Agricultural law and policy need holistic reform. True transformation will require legislative action within the commodity programs and throughout the Farm Bill. The next Farm Bill cycle is already here, and ideas for revolutionary legislative change do exist. Nevertheless, stalemate and stagnation continue to characterize Congress. Be that as it may, Congress has already delegated meaningful power to USDA to act through rulemaking. Even in light of the MQD, as long as the “sound agricultural practices” criterion exists in the Farm Bill, USDA can begin the process of scaling up carbon farming on U.S. cropland.
