Predicting How a “Justice” Gorsuch Would Impact Environmental Law

Judge Neil Gorsuch of the Tenth Circuit is presently being considered by the U.S. Senate for confirmation of his appointment to the U.S. Supreme Court. Appointed by President Trump shortly after taking office, Judge Gorsuch would take the now long-vacant seat formerly held by Justice Antonin Scalia.

Judge Gorsuch is in many ways very similar to Justice Scalia, and in that sense his confirmation might simply result in more of same from the Supreme Court when it comes to environmental law. Yet there are also key differences between the two men that could be quite consequential. This article explores what a “Justice” Gorsuch would mean for environmental law.

Judge Gorsuch’s pedigree looks very much like Justice Scalia and all the other sitting Justices. He attended college at Columbia University, got his JD at Harvard Law School, got his doctorate at Oxford as a Marshall Scholar, and then clerked on both the D.C. Circuit and the Supreme Court. He spent a decade at a D.C. law firm before joining the Department of Justice and then being appointed to the Tenth Circuit in 2006.[1]

Judge Gorsuch lives with his family on a ranch outside Boulder, Colorado. In the shadow of the Rockies, he and his family raise horses, chickens, and goats. Judge Gorsuch is an avid skier and fly fisherman, and has begun a legal opinion with the statement, “Everyone enjoys a trip to the mountains in the summertime.”[2]

In contrast to Judge Gorsuch’s apparent affinity for the great outdoors is the legacy of his mother, Anne Gorsuch (later Anne Gorsuch Burford), President Reagan’s first appointee to lead the EPA. Anne Gorsuch presided over a highly controversial deregulation effort before her 22-month tenure at EPA came to an end amid Congressional concerns that she was mismanaging the Superfund and hiding documents from Congress.[3] What effect this had on young Neil Gorsuch is difficult to surmise. He was an outspoken conservative in school, but not with any notable distaste for environmental protection in particular.[4]

Judge Gorsuch would be only the second Supreme Court Justice to hail from Colorado.[5] The first was Justice Byron White, a pragmatic centrist for whom Judge Gorsuch clerked after earning his doctorate. (Judge Gorsuch also clerked for renowned swing-voter Justice Anthony Kennedy when Justice White retired, and he and Justice Kennedy are reputedly still on good terms.)[6] If Judge Gorsuch’s confirmation hearing testimony is any indication, he reveres Justice White and is likely to want to uphold his legacy.

Judge Gorsuch is reputedly an originalist,[7] which refers to a school of interpretation under which the best interpretation of the Constitution is that which accords with its original meaning. Originalism is strongly associated with conservative jurists and scholars, but this correlation is not particularly predictive for questions of environmental law. For instance, Judge Gorsuch’s originalist views appear to have shaped his skepticism of the dormant Commerce Clause doctrine in a case in which a more expansive embrace of that doctrine would have led to the invalidation of Colorado’s renewable portfolio standard.[8] When it comes to statutory interpretation, Judge Gorsuch — like, it would seem, most constitutional originalists — turns to textualism as his primary interpretive tool.[9] By applying textualism, Judge Gorsuch eschews questions of legislative intent (which might, say, concern the motives of Congress in 1970) in favor of an abstracted analysis of the statute’s exact wording.

Perhaps his most famous down-the-fairway conservative opinion was in Hobby Lobby,[10] in which he — and later the Supreme Court[11] — sided with a family-owned company objecting to the Affordable Care Act requirement that it provide contraceptive coverage for its employees. But Hobby Lobby fundamentally turned on Judge Gorsuch’s interpretation of Americans’ religious freedom rights, and says little about his views of the environment or administrative law. In contrast, Judge Gorsuch took a more typically liberal view of criminal justice in a recent case involving a seventh grader arrested for burping in gym class, where he dissented against his Tenth Circuit colleagues who sided with the middle school and its resource officer.[12]

The proper characterization of Judge Gorsuch’s full record on social issues has elsewhere been treated at length,[13] and I do not attempt here to retread that ground. Suffice it to say that I have seen no clear indication that Judge Gorsuch’s politics are likely to produce consistent substantive results in environmental law cases. The basis for predicting the effect of a “Justice” Gorsuch on environmental law lies rather in his handling of some of the more fundamental questions of jurisprudential philosophy that tend to have significant consequences in environmental law cases. The remainder of this article treats such questions under three broad themes: statutory interpretation, states’ rights, and access to the courts.

Statutory interpretation is a key issue for environmental law because so much of the environmental legal landscape consists of complicated federal statutes administered by federal agencies. How these statutes are interpreted, and whether the agencies or the courts have the final say, is key to such important questions as whether the federal government can regulate greenhouse gas emissions[14] and whether developers can challenge a compliance order finding that their property contains waters of the United States.[15]

As mentioned above, the statutory interpretation method known as textualism favors the precise wording of a statute over the policy context in which the law was passed. The theory behind a textualist approach is that the Constitution only recognizes the legitimacy of a written law that successfully passed both houses of Congress and was signed by the President. Broader Congressional intent — as stated in the legislative record, argued on the campaign trail, or just surmised by judges — is not, the argument goes, imbued by the Constitution with the force of law. Respecting the exact wording of a statute respects the legislative compromise that was reached through the exercise of Congress’s constitutional role. It also ideally forces Congress to be more careful about its exact wording. Historically, textualism has been embraced by more conservative jurists, while a liberal value system gave more weight to Congressional intent.

Justice Scalia’s efforts in championing the textualism approach, and those of legal scholars such as Professor John Manning, have been so successful in advocating the merits of textualism and reasonably teasing out its nuances that it is now widely employed, if not expressly embraced, by conservative and liberal jurists alike.[16] Textualism, applied thoughtfully and open-mindedly, does not have to lead to conservative results. Indeed, textualism led Justice Scalia in the landmark case of Whitman v. American Trucking[17] to conclude that a particular provision of the Clean Air Act did not permit EPA to consider costs when regulating. Thus, Judge Gorsuch’s embrace of textualism is less predictive of his future environmental law rulings than one might imagine.

Coming at statutory interpretation from a different angle, the Chevron doctrine states that if a statute is ambiguous on a particular issue, a court should defer to any reasonable interpretation properly promulgated by the statute’s implementing agency.[18] The theory behind the Chevron doctrine is generally that Congress intended to leave things up to the agency when it left gaps in the statute, and that agencies are better positioned than courts to fill the gaps because they are technical experts and (somewhat) more democratically accountable.[19] For example, the Clean Air Act directs the EPA to regulate certain pollutants when “appropriate and necessary.”[20] The question is then whether the EPA or the judiciary gets to determine what the standards for “appropriate and necessary” should be. A textbook application of Chevron would say that as long as EPA comes up with reasonable standards, even if a court thinks it could come up with better ones, EPA’s interpretation is sustainable.

The Gorsuch opinion receiving perhaps the most attention in the environmental law community is the concurrence he wrote (to his own majority opinion) in Guittierez-Brizuela v. Lynch.[21] The case involved a thorny administrative law question regarding conflicting statutory interpretations issued by the Board of Immigration Appeals (an agency) and the Tenth Circuit. The resolution of the case depended on application of both Chevron and its descendant, Brand X,[22] which favors an agency interpretation even above a conflicting, previously issued judicial interpretation. In Judge Gorsuch’s Guittierez-Brizuela concurrence, he called out the Chevron doctrine for eroding the constitutional separation of powers and the prerogative of the judiciary to say what the law is.[23] In Judge Gorsuch’s view, Chevron defies the Constitution.

By contrast, Justice Scalia was a supporter of Chevron. Even though he applied it to more conservative ends than average, and even though he strongly objected to some of its progeny (e.g. Auer deference, where courts defer to an agency’s interpretation of its own rules[24]), Justice Scalia certainly did not call for an end to Chevron altogether.[25] Thus, Judge Gorsuch’s views on Chevron would shift the Court’s center of gravity on this issue.

Both Democrats and Republicans have tended in recent years to view Chevron as a liberal doctrine, facilitating heavy regulation of the environment and other fields that might not otherwise be permissible. However, the recent political climate has exaggerated this effect. Environmental law of the recent past has been characterized by three factors: (1) most of the operative statutes were passed decades ago; (2) the more conservative recent Congress has been generally unable to modify those statutes to introduce constraints; and (3) the administrative agencies have been dominated by pro-regulation liberals. Thus, by allowing expansive interpretations of older, more liberal laws by modern, more liberal agencies, Chevron has appeared to be a liberal device. Yet Chevron could just as easily have the opposite effect, permitting conservative agencies to truncate federal regulatory enforcement against the wishes of a more liberal Congress which happens to be unable to amend the statutes to force greater regulation.

Judge Gorsuch’s views on Chevron, if carried out, would likely lead more to procedural changes than political ones. Judge Gorsuch’s Chevron-free universe would involve more common law-type statutory development, such as that which exists in the antitrust context.[26] Currently, agencies go through a public notice-and-comment process to make changes to statutory implementation that are as substantial as they can get away with, whenever they feel like it (particularly when the administration changes).[27] Accordingly, statutory implementation swings back and forth with the political pendulum. Non-Chevron statutory implementation would develop slowly and incrementally through judge-made law. Advocates of particular statutory interpretations would bring test cases to the courts, rather than participate in public notice-and-comment processes. Implementation of federal regulations might differ much more significantly between judicial Circuits than it does now. The federal regulatory landscape would look different, certainly, but not in an obviously partisan way.

One important caveat to the prominence of Judge Gorsuch’s anti-Chevron stance is that the Supreme Court may already be heading in his direction. Major statutory interpretation cases in recent years have been notably Chevron-free, or even carved out novel exceptions to Chevron such as for cases that are really, really important.[28] As a result, EPA, under the Obama administration, had already shifted its defense of the Clean Power Plan to rely more on judicial statutory interpretation than on Chevron. Even Congress has been flirting with the idea of ending Chevron recently, albeit with no clear path to success in that endeavor. If this tide-turning is really taking place, “Justice” Gorsuch would tip the scales even further in that direction. But Chevron may be going the way of the mammoth even without him.

States’ rights become relevant in the environmental law context to the extent that states’ environmental policies differ from federal environmental policies. For instance, state renewable portfolio standards, project environmental analysis requirements, private tort recovery, and animal cruelty laws all may go further toward protection of public health and the environment, and thereby impose greater restrictions on businesses than federal programs provide. The balancing of states’ rights against federally protected individual rights and the supremacy of the federal government is the subject of numerous judicial doctrines, two of which are addressed here.

When state law operates in an area that has also been regulated by Congress, there is a possibility that courts will find the state law “preempted.” Whether the state law at issue is statutory, regulatory, or judge-made common law like tort law, preemption operates to invalidate the state law in favor of a federal scheme. There are multiple types of preemption, such as where federal law and state law are in direct conflict, where Congress has expressed an intent to preempt certain types of state law, and where Congress has so thoroughly occupied a field of law that any state law in that same field would be deleterious to Congress’s overall scheme. This third type of preemption can give courts a great deal of discretion in allowing or rejecting a state’s legal choices. Preemption is a key issue in the “California Question,” regarding whether California can continue to exercise leadership in enacting policies stricter than EPA’s under the Clean Air Act, including with respect to climate change.[29]

In Cook v. Rockwell International Corp.,[30] Judge Gorsuch had to decide a preemption question. At issue was whether the federal Price-Anderson Act, which provides a particular liability scheme for “nuclear incidents,” preempted state tort law that would have allowed local residents to seek damages from a nuclear weapons production facility that had leaked (and sometimes dumped) radioactive materials. In contrast to the Fifth Circuit, Judge Gorsuch held for the Tenth Circuit that state tort law was not preempted, and that the local residents could therefore recover. Judge Gorsuch eschewed the application of field preemption, looking instead to the precise text of the Price-Anderson Act and finding no indication of an intent to preempt. Judge Gorsuch also determined that preemption is disfavored in areas where state law deals with public health and safety. This categorical carve-out may prove particularly important for state environmental laws.

Justice Scalia’s record on preemption was somewhat shaky, with forceful opinions written both for and against. He could be criticized for fully embracing preemption in certain political contexts, while championing states’ rights in others. There is not enough of a record to assume that Judge Gorsuch’s philosophy of preemption is consistent, but if Cook is a fair example, he may tip the Court more solidly in the states’ rights direction.

The dormant Commerce Clause doctrine says that the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce, also implies its negative corollary, which is that states must not interfere with interstate commerce. State environmental initiatives are already constrained by preemption by federal environmental statutes. The dormant Commerce Clause allows courts to block state environmental programs even where Congress has never addressed the issue.

One of Judge Gorsuch’s most notable opinions directly concerning environmental issues is Energy and Environmental Legal Institute v. Epel.[31] This case concerned Colorado’s renewable portfolio standard, which required state utilities to obtain at least 20% of their power from renewable sources like wind and solar. Out-of-state coal power producers challenged Colorado’s law as discriminating against out-of-state businesses in violation of the dormant Commerce Clause. Judge Gorsuch applied the dormant Commerce Clause narrowly and held in favor of Colorado. In so doing, he took the opportunity to note that while the Tenth Circuit is bound by precedent to apply at least some version of the dormant Commerce Clause, there is reason to doubt whether the dormant Commerce Clause is actually a legitimate doctrine. He cited Justices Scalia and Thomas for concurring and dissenting opinions arguing the incompatibility between the dormant Commerce Clause doctrine and the Constitution’s text.

Since Justice Scalia was also a dormant Commerce Clause detractor, Judge Gorsuch’s views might not change the course of the Court on this issue. However, if the liberal Justices become more inclined to support state leadership in regulatory arenas where the federal government is pulling back, a few well-articulated arguments from “Justice” Gorsuch might provide the fodder needed for a major doctrinal shift. This would be similar to what happened when the combination of Justice Scalia’s strict textualist reading and the liberal Justices’ concern for the rights of criminal defendants resulted in a major overhaul of the Confrontation Clause under the Sixth Amendment.[32]

Judge Gorsuch also sided with the state of Colorado in Direct Marketing Association Inc. v. Brohl,[33] which concerned whether Colorado could require out-of-state online retailers to notify Colorado customers of what they owed in state sales taxes. These examples suggest that his traditionally conservative respect for states’ rights is likely to extend just as well to states’ rights to regulate more as to states’ restriction to regulating less.

Finally, access to the courts is also a uniquely significant background issue for environmental law. In particular, the doctrine of standing is used by courts to decide whether a plaintiff is asserting the type of “case or controversy” entrusted to the federal judiciary by Article III of the Constitution. Regulated parties typically have a clear “case or controversy” in environmental law cases because their own financial interests are directly at stake. However, environmental interests may bring cases more for the sake of the environment itself than for their own private interests. Modern standing doctrine, championed especially by Justice Scalia, has deemed this a fatal flaw and presented a significant barrier to environmental groups’ access to the courts.[34]

Judge Gorsuch does not have a significant track record with regard to standing issues. The standing questions he has decided have produced mixed results, with little ideological constancy.[35] However, in an essay he wrote shortly before becoming a Tenth Circuit judge, Judge Gorsuch rebuked liberals for relying on the courts to further their political goals when they ought, in his view, to be battling instead in the court of public opinion that is the democratically elected branches.[36] This is precisely the attitude that motivated Justice Scalia’s version of the standing doctrine. Yet, because the view Judge Gorsuch expressed in that article has not shown up in any obvious way in his Tenth Circuit jurisprudence, it is possible that he has developed a more nuanced attitude to standing issues as a jurist. All in all, it is difficult to predict whether a “Justice” Gorsuch would carry on Justice Scalia’s standing legacy.

While Judge Gorsuch may have acted on more consistently conservative tendencies in other areas of the law, his handling of environmental law cases is not likely to follow a partisan trend. In the arena of statutory interpretation, Judge Gorsuch’s textualist preferences can no longer be seen as a predictor of traditionally conservative results. Likewise, his seemingly novel disdain for Chevron deference does not preclude as expansive statutory interpretation by judges as is currently practiced by agencies, and may not be so novel at all. In the realm of states’ rights, Judge Gorsuch’s apparent ideologically consistency has the result of protecting expansive state environmental regulation as much as state laxity. Finally, Judge Gorsuch’s mixed record on standing issues suggests that he may be less hostile at least than Justice Scalia was to the use of citizen enforcement by environmental interests to keep federal environmental laws operative.

As the Trump administration soldiers on, we may expect to see continued contraction of environmental regulation and enforcement at the federal level. We can also expect at the same time to see increased efforts by liberal states to make up the difference through state regulation and enforcement, and by environmental interests to keep the federal environmental laws more vibrant. A “Justice” Gorsuch may not be an ideological supporter of a large administrative state, but he may very well be a friend to states trying to fill the gap, and to environmental groups trying to get into court to uphold the laws on the books.