Gorsuch Could (But Might Not) Spell Trouble for Environmental Rules

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By Rebecca Wilhelm

U.S. Supreme Court nominee Neil Gorsuch has opposed giving broad deference to the EPA and other federal agencies during a decade on the federal bench, but his track record also indicates a reluctance to support “heavy-handed rollbacks” of Obama-era environmental rules, legal experts told Bloomberg BNA.

If confirmed, Gorsuch’s biggest impact on environmental law might come from his opposition to Chevron deference, which refers to a 1984 Supreme Court decision giving agencies wide latitude in deciding how to interpret their responsibilities under federal statutes, they said.

Gorsuch “has expressed skepticism about Chevron deference, which would certainly have an effect on environmental law cases,” Jonathan H. Adler, Case Western Reserve University School of Law professor, told Bloomberg BNA in an e-mail. “Perhaps paradoxically, this position could make it more difficult for a Trump administration to undo some of the Obama administration’s environmental initiatives.”

President Donald Trump has explicitly said that he intends to reverse a number of Obama administration policies, but it’s likely that Gorsuch would not support “heavy-handed rollbacks,” Brendan K. Collins, a partner at Ballard Spahr LLP in Philadelphia who has argued before the Supreme Court, told Bloomberg BNA.

Limits on ‘New Sheriff’

“I think that Gorsuch would frown on the notion that the 2016 election result ought to lead to a reversal of judicially affirmed conclusions of law,” Collins said.

For example, the Supreme Court has found that carbon dioxide is a pollutant under the Clean Air Act subject to Environmental Protection Agency regulation, but Gorsuch might be hostile to reversing that determination simply “because there’s a new sheriff in town,” Collins said.

And if confirmed, Gorsuch could also—if consistent in his reasonings—upend regulations promulgated by the Trump administration, Harvard Law School professor Richard J. Lazarus told Bloomberg BNA in an e-mail.

“The challenge … is to have judges who in fact apply the doctrine in an even-handed way even when it goes against the policies they might personally favor or be favored by those who have nominated them to the Court,” Lazarus said. “Far more judges claim to be even-handed than in fact are.”

“But let’s hope that if Judge Gorsuch becomes Justice Gorsuch, he will be that kind of outstanding Justice who is even-handed.”

Nearly a Year Since Scalia’s Death

Trump Jan. 31 nominated Gorsuch, who has served on the U.S. Court of Appeals for the Tenth Circuit since 2006, to fill the seat left vacant almost a year ago by the death of Justice Antonin Scalia. Senate Republicans had refused to consider President Barack Obama’s nominee Merrick Garland, who is chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.

Speaking at the White House late Jan. 31, Gorsuch pledged to be impartial and independent, stressing that a judge’s role is “to apply, not alter, the work of the people’s representatives.”

He added: “A judge who likes every outcome he reaches is very likely a bad judge.”

Gorsuch has reviewed almost a dozen environmental law cases during his tenure at the Tenth Circuit, including an attempt to bar a mining company that settled its Superfund liability in bankruptcy court from recovering some of those costs and a challenge to the EPA’s decision not to limit mercury and selenium emissions from a coal-fired power plant in northwest New Mexico ( Asarco, LLC v. Noranda Mining, Inc., 844 F.3d 1201, 83 ERC 1897, 2017 BL 59, (10th Cir. 2017); WildEarth Guardians v. EPA, 759 F.3d 1196, 79 ERC 1194, 2014 BL 204023, (10th Cir. 2014)).

Time ‘to Face the Behemoth’

Under the Chevron doctrine, courts take a two-step approach in reviewing challenges to agency actions. If the statute clearly speaks to the issue, the inquiry stops there. If the statute is silent or ambiguous, the court determines whether the agency’s interpretation is a permissible statutory construction. If so, the court defers to the agency ( Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 21 ERC 1049 (1984) ).

Gorsuch outlined his views on agency deference in a concurrence he wrote to one of his own majority opinions last year ( Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 2016 BL 273118, (10th Cir. 2016)).

Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design,” Gorsuch wrote in the immigration law case. “Maybe the time has come to face the behemoth.”

‘Super Court of Appeals’

The Supreme Court held in Brand X that an agency’s interpretation of an ambiguous statute outweighs prior decisions of a federal appeals court, unless the court has held that the statute is not ambiguous ( Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 73 U.S.L.W. 4659 (2005) ).

This doctrine has permitted agencies to act like “some sort of super court of appeals,” Gorsuch wrote in Gutierrez-Brizuela.

In United States v. Magnesium Corporation of America, the Tenth Circuit upheld an EPA reinterpretation of a Resource Conservation and Recovery Act regulation governing mineral processing waste. Writing for the majority, Gorsuch reassured regulated parties that they would not be subjected “to the whims of an agency’s arbitrary interpretive reversals” ( United States v. Magnesium Corp. of Am., 616 F.3d 1129, 71 ERC 1641, 2010 BL 190182, (10th Cir. 2010)).

He noted that the Administrative Procedure Act requires agencies to explain their decision-making and empowers courts to review those decisions.

Scant Environmental Law Record

“He hasn’t made a lot of substantive environmental decisions,” Collins said. “A number of environmental advocacy groups have lambasted his record, but I don’t think there’s much traction there.”

“Gorsuch has proven himself hostile to environmental protection … and cannot be trusted to protect our air, our water, or our communities,” Sierra Club executive director Michael Brune said in a statement.

The cases in which he has made decisions on environmental or public lands issues are really more about his administrative law views, Harvard Law School professor Jody Freeman told Bloomberg BNA. “He seems to come down on both sides depending on the particulars of the case.”

‘Not ... Out of the Mainstream’

“He’s not wacky or out of the mainstream,” Victor B. Flatt, professor at the University of North Carolina at Chapel Hill School of Law, told Bloomberg BNA.

For example, Gorsuch ruled in favor of a plaintiff suing a nuclear weapons manufacturer and held that the Price Anderson Act did not preempt their federal and state tort claims ( Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 80 ERC 2172, 2015 BL 199152, (10th Cir. 2015)).

Gorsuch also voted to uphold Colorado’s clean energy law, which requires 20 percent of electricity to come from renewable fuels, against a constitutional challenge ( Energy & Env’t Legal Inst. v. Epel , 793 F.3d 1169, 2015 BL 222450, (10th Cir. 2015)).

“That one decision was probably something that advocates for clean energy will like, but you can’t make too much of it,” Freeman said.

Scalia Comparisons

Gorsuch is a conservative jurist and would likely replicate Justice Scalia’s positions, Freeman said. However, he might be more skeptical than Scalia of agency deference.

Scalia was an early proponent of Chevron, although in the past few years he began questioning the doctrine, Flatt said. In that sense, Gorsuch is not Scalia. “He actually moves the court in a direction that’s more likely to disavow the Chevron doctrine.”

But the doctrine is far from doomed, Thomas Lorenzen, a partner at Crowell & Moring LLP in Washington, D.C., told Bloomberg BNA in an e-mail. “So far, I think only Justice [Clarence] Thomas agrees with Judge Gorsuch that Chevron is wrong.”

Son of Former EPA Administrator

The 49-year-old jurist is the son of Anne Gorsuch Burford, who served under President Ronald Reagan as the first female administrator of the EPA, but was forced to resign in 1983 after less than two years on the job, after trying to dismantle the agency.

Gorsuch graduated from Harvard Law School in 1991. He clerked for Justice Anthony Kennedy and would be the first sitting justice to serve alongside his former boss.

To contact the reporter on this story: Rebecca Wilhelm in Washington, D.C., at rwilhelm1@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

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