Next week, the Senate is expected to vote on whether to put Judge Neil Gorsuch on the highest court in the United States. If confirmed, Gorsuch would fill a Supreme Court seat left vacant by the death of Antonin Scalia more than a year ago, a seat that senate Republicans blocked President Obama from filling last year. And a seat that will likely shape the court for decades to come. So, in a tumultuous political time, one in which environmental policies are under attack in Washington, what exactly would a Gorsuch confirmation mean for the environment?
Photo by Geoff Livingston
The answer is, well, a little tricky. Gorsuch, currently a judge on the 10th Circuit Court of Appeals in Colorado, doesn’t have an extensive record when it comes to environmental law. By virtue of geography, those environmental cases that have come before him generally have had more to do with public lands than, say, federal regulations pertaining to fuel efficiency standards or power plant emissions, issues that are generally litigated in DC.
Based on those cases that have come before him, however, many environmental advocates are worried.
Denise Grab, a senior attorney with the New York University School of Law’s Institute for Policy Integrity, agrees that there could be some cause for concern for public interest groups, particularly with respect to procedural issues.
“One of the potential biggest concerns for environmental groups who are looking at [Gorsuch’s] record are some of his rulings on standing and other procedural rulings,” Grab says. “He has in previous cases required an atypically high bar” for environmental groups to have their cases heard.
Standing is a legal principle that requires a person or group to show they are sufficient impacted by the issue at hand to bring a suit in the first place. It requires showing some kind of concrete injury. Some kinds of injury are easy to establish — damage to your property causes economic harm, for example. Harm suffered due to lack of enforcement of the Clean Air Act or the Endangered Species Act is less straightforward, though environmental groups routinely, and successfully, make the case.
Gorsuch has also argued against the right of public interest groups to intervene in cases, a common practice that allows environmental organizations to join the defense when government regulations are being challenged. The Center for Biological Diversity, a nonprofit environmental group that regularly goes to court to protect endangered species, has experienced this first-hand. “Gorsuch has consistently tried to shut the courtroom doors to ordinary citizens and public-interest organizations seeking to promote environmental protection and the public good,” the Center said in a statement. In a 2013 case, New Mexico Off-Highway Vehicle Alliance v. US Forest Service, “he went out of his way to dissent from a decision allowing the Center and other groups to intervene in a case over the management in national forests. His position, rejected by the majority, would have excluded the public from participation in many cases affecting public lands and natural resources.”
Another central principle in many environmental law cases is “Chevron deference,” a precedent established by the Supreme Court in Chevron USA, Inc. v Natural Resources Defense Council, Inc. In that case, environmental groups challenged regulations established by the Environmental Protection Agency under the Clean Air Act — they wanted the EPA to more stringently regulate new sources of air pollution under the statute. The court upheld the EPA’s regulation, finding that courts should defer to an agency’s interpretation of ambiguous statutes that they administer. Though the NRDC lost that case, Chevron deference has since been frequently used in environmental cases to defend federal agency regulations, including in current litigation surrounding Obama’s Clean Power Plan.
Denise Grab thinks there is some cause for concern on this point as well, though she doesn’t think it’s quite as clear-cut as the standing issue. “Gorsuch has come out against Chevron deference to agencies, which could have some effect on environmental cases because a lot of them involve agency decisions,” she says. In a legal memo she wrote about Gorsuch’s environmental record, however, she notes that “other decisions suggest that he may be willing to defer to agencies, depending on the context.”
Dan Farber, a professor at the University of California, Berkeley School of Law and co-faculty director of Berkeley Law’s Center for Law, Energy & the Environment, understands the concern around Gorsuch’s Chevron record. But, in a stance that sets him apart from many environmental lawyers, he adds: “I’m not convinced that Chevron is as crucial as people seem to think. I’m not sure there are that many cases that agencies are going to win because of Chevron that they wouldn’t have anyways.”
And in general, based on Gorsuch’s limited environmental record, he isn’t overly worried about the nominee. “[Gorsuch] doesn’t strike me as a bomb thrower, that he’s going to come down with some striking decisions that wreak havoc,” Farber adds. “Given that the decision was going to be made by a Republican president, I don’t think that we were going to do much better than him in terms of environmental cases, and maybe in general.”
Many environmental groups, however, don’t view Gorsuch as such a moderate choice. In additional to the Center for Biological Diversity, the Sierra Club, Friends of the Earth, Greenpeace, and Earthjustice have all come out strongly against the judge, many of them pointing not only to his record on the environment, but also to his history of siding with corporate interests and his hostility towards the rights of women, workers, and the disabled.
Earthjustice also sees a red flag when it comes to the Judge’s impartiality. “We’re concerned that Judge Gorsuch has criticized liberals for making too frequent use of the courts, thus singling out one side of the policy debate for criticism,” says Howard Fox, counsel with Earthjustice, referring an article Gorsuch penned in 2005. “The reality is that, for example, polluters bring many, many lawsuits using the courts to try to fight limits on the amount of pollutants they spew into the water and the air.”
Next week is likely to hold its share of political drama. Senate Democrats have promised to filibuster Gorsuch’s confirmation vote and Republicans have threatened to deploy the so-called “nuclear option,” changing Senate rules to lower the threshold for ending a filibuster. If they do so, in all likelihood, Gorsuch would become the ninth justice on the Supreme Court. And if he is confirmed, we’ll likely find out sooner than later exactly where he stands on procedural issues central to the practice of environmental law.
Indeed, the DC Circuit Court of Appeals is poised to release its judgment on Obama’s signature climate policy (though on Tuesday, the Department of Justice asked it not to, since President Trump has tasked the EPA with rewriting the rule). If the court goes ahead with a ruling, the case will almost certainly be appealed to the Supreme Court.