After a contentious confirmation process, the U.S. Senate voted April 7 to appoint federal appeals court Judge Neil Gorsuch to the U.S. Supreme Court. Here are some key takeaways on Gorsuch's judicial history and philosophy and what his presence as an associate justice on the high court could mean for the energy sector.
Gorsuch is a judicial conservative whose philosophies often align with his Supreme Court predecessor Antonin Scalia, who died in February 2016. As such, the balance of the court will remain ideologically similar to when Scalia sat there, with four liberal-leaning judges, four conservative judges and swing voter Justice Anthony Kennedy.
Like Scalia, Gorsuch has "a set of judicial/ideological commitments apart from his personal policy preferences," according to a SCOTUSblog post by Eric Citron. Gorsuch is also an "ardent textualist" who adheres strictly to the language of laws and the U.S. Constitution and is "highly dubious of legislative history," Citron said.
In one notable example for the energy sector, Gorsuch dismissed a complaint that a Colorado clean energy mandate violated the so-called "dormant commerce clause" because the program would affect out-of-state coal producers. Gorsuch said the dormant commerce doctrine should have limited scope because it cannot be found in the text of the Constitution.
One key area where Gorsuch differs from Scalia is his criticism of the Chevron deference, a legal precedent that gives federal agencies substantial leeway in their interpretation of vague statutes. While sitting on the U.S. Court of Appeals for the 10th Circuit, Gorsuch wrote in a concurring opinion in an immigration-related case that said the Chevron deference allowed the executive branch to exceed its authority and "swallow huge amounts of core judicial and legislative power."
Democrats and environmental groups fear Gorsuch's stance on the Chevron doctrine could cause him to rein in agency powers at the Supreme Court, preventing the U.S. EPA and other agencies from enforcing air and water quality laws and other public safeguards. But critics of federal regulations for the energy sector and other industries are pleased.
Gorsuch's appointment could put "more power back where it should be with Congress… and less with unelected bureaucrats," said Jon Meadows, spokesman for free-market conservative group FreedomWorks.
Executive overreach could be less of a concern in the next four years, however, with President Donald Trump working to cut federal regulations and rescind many of the Obama administration's energy and environmental rules. "I don't think [EPA Administrator Scott] Pruitt will interpret [laws] liberally," Sierra Club Legal Director Pat Gallagher told S&P Global Market Intelligence.
Citizen challenges to energy projects and power plant emissions could also encounter more resistance with Gorsuch on the high court, Gallagher said. While on the 10th Circuit, Gorsuch moved to block groups such as Sierra Club from participating in lawsuits related to public land use in the West. Gallagher said he feared Gorsuch could encourage the Supreme Court not to rule on the merits of citizen-backed cases, saying those groups do not have standing.
"I worry quite a bit that Justice Gorsuch is going to apply some sort of ideological separation of powers test as to whether citizens can get into court or not," Gallagher said, adding that it would be a "real blow to democracy."
Gorsuch will join the Supreme Court at a pivotal time for energy. Cases are pending in lower courts against the EPA's Clean Power Plan and Clean Water Rule, also known as the Waters of the U.S., or WOTUS, rule. The U.S. Court of Appeals for the District of Columbia Circuit is also handling litigation against EPA's mercury standards, Gallagher said.
The Trump administration has directed EPA and other agencies to review several Obama-era rules affecting the energy sector for potential changes or repeal, including much of the prior administration's climate policies. But if litigation proceeds against those rules, Gorsuch will help tip the high court's scales for or against them, breaking an ideological stalemate since Scalia's death.