President Donald Trump's nominee for the Supreme Court has called for less judicial deference to federal agencies in administrative law matters, potentially limiting the regulatory powers of the U.S. EPA, FERC and other agencies if he is confirmed to the high court.
Trump on Jan. 31 nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit to fill the Supreme Court seat vacated last year when Justice Antonin Scalia died. During his time on the 10th Circuit, Gorsuch fervently criticized the Chevron deference, a legal doctrine that grants substantial leeway to agencies' interpretations of congressional statutes. In an immigration-related case involving the U.S. Attorney General's Office, Gorsuch said the Chevron doctrine allows the executive branch 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."
He has favored giving courts the chance to conduct "de novo," or new, reviews of contested regulatory statutes and letting Congress change laws if policymakers disagree with a judicial interpretation of a statute.
That legal perspective contrasts from that of his possible predecessor Scalia, who had supported the Chevron doctrine during most of his Supreme Court tenure, and could mean Gorsuch gives less deference to rulemaking efforts by the EPA, FERC, the U.S. Department of Interior and other agencies involved in the energy sector if he eventually sits on the Supreme Court.
Gorsuch's criticisms of the Chevron deference have alarmed environmental groups that support frequently targeted air and water quality regulations. Although Trump is planning to use his executive power to overturn some Obama administration environmental rules, including the EPA's Clean Power Plan, the Supreme Court could handle lawsuits against other high-profile regulations in the future.
"A review of Gorsuch's writings and decisions indicate that he would seek to overturn well-established Supreme Court precedents and prevent the federal government from enforcing bedrock environmental laws such as the Clean Air Act and the Clean Water Act," Earthjustice President Trip Van Noppen said.
The group also expressed concern with Gorsuch's decision in the controversial Hobby Lobby Stores, Inc. v. Sebelius case over contraceptive coverage under the Affordable Care Act. In that case, Gorsuch sided with the majority opinion that corporations can be considered persons for the purpose of acting on religious objections.
But legal experts say Gorsuch's stance on regulation does not favor particular industries and is more about how disputed laws and rules are interpreted than a specific policy result.
"Judge Gorsuch's deregulatory approach would appear to be favorable to business, but since his legal reasoning is divorced from policy and outcomes, he may not have allegiances to any particular types of industry," according to a blog post by Bracewell LLP attorneys Ryan Eletto, Kathryn Schroeder and Jason Hutt.
In one notable case in the 10th Circuit, Gorsuch dismissed a complaint against a Colorado clean energy program filed by a group representing out-of-state coal producers. In Energy and Environment Legal Institute v. Epel, Gorsuch declined to apply the so-called "dormant commerce clause" to overturn the clean energy mandate. The dormant commerce clause is not found in the Constitution but has been used to allow Congress to make laws governing interstate commerce and to limit states from unduly burdening or discriminating against interstate commerce, according to a post from SCOTUSblog on Gorsuch's judicial history. But Gorsuch, a textualist who interprets the law based on the original meaning of the text, explained in his opinion that the clause had limited reach and that it was "absent from the Constitution's text and incompatible with its structure."
Gorsuch is a Harvard Law School graduate who clerked for Supreme Court Justices Byron White and Anthony Kennedy. He was appointed to the 10th Circuit in 2006 by President George W. Bush after the U.S. Senate unanimously voted to confirm him. Gorsuch is also the son of the first female EPA administrator, Anne Gorsuch Burford, who headed the agency under President Ronald Reagan before resigning amid allegations that she mishandled the federal Superfund cleanup program.
Despite Gorsuch's legal bonafides, he will likely face a contentious confirmation process. Senate Democrats are bitter over GOP lawmakers' refusal in 2016 to hold hearings for President Barack Obama's pick to replace Scalia, D.C. Circuit appeals court Chief Justice Merrick Garland.
Leading Democrats have also criticized Gorsuch's judicial history and fear he is too conservative.
"Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women's rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court," Senate Minority Leader Chuck Schumer, D-N.Y., said.
Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., promised a "thorough and unsparing examination of this nominee," particularly on where Gorsuch stands on the legal precedent established in the Roe v. Wade case that legalized abortion.
Schumer said the "burden is on [Judge Gorsuch] to prove himself to be within the legal mainstream" in order to gain the 60 Senate votes needed to avoid a filibuster. Republicans hold 52 seats in the Senate, raising the possibility that Majority Leader Mitch McConnell could seek to change confirmation rules in order to confirm Gorsuch.