WASHINGTON, Feb. 8, 2017 - Federal appeals judge Neil Gorsuch will bring a healthy dose of skepticism to the Supreme Court about how federal agencies exercise their authority, according to his opinions on the 10th Circuit Court of Appeals and legal analysts.
Gorsuch has written critically about Chevron deference, a doctrine derived from a 33-year-old Supreme Court opinion that basically says courts have to give agency interpretations of ambiguous laws the benefit of the doubt.
Before he brings his brand of judicial conservatism to the high court, of course, Gorsuch has to go through the confirmation process. It’s not clear at this point how actively Democrats will oppose him, or whether Senate Majority Leader Mitch McConnell will have to, as suggested by President Donald Trump, “go nuclear” – rewrite the Senate rules to prevent Democrats from filibustering to block the nomination.
Shortly after Trump announced the nomination, interest groups of all ideological stripes began endorsing Gorsuch or excoriating his record.
Ellen Steen, general counsel for the American Farm Bureau Federation, said Gorsuch’s confirmation “should bode well for our efforts to restore some accountability and restraint on federal agencies.”
“Courts over the years have increasingly granted ‘judicial deference’ to an agency’s interpretation of the law, which has allowed federal agencies over time to dramatically expand their own power far beyond what Congress authorized,” Steen said. “Judge Gorsuch is part of a growing number of scholars, judges and political leaders who question whether this doctrine of deference has gone too far – whether courts are properly fulfilling their constitutional role as the interpreters of the law.”
The Pacific Legal Foundation, which is litigating a current Supreme Court case that involves where the challenge to the EPA’s “waters of the U.S.” rule should be heard, also cheered Gorsuch’s nomination.
“His prior opinions demonstrate a careful effort to enforce the text of the Constitution and laws as they are written,” said Todd Gaziano, executive director of PLF’s D.C. Center.
On the other side, along with civil liberties and other groups, Defenders of Wildlife said it opposes Gorsuch, citing his position on Chevron deference. “His decisions reveal an alarming lack of respect for federal agencies that manage our natural heritage, and the conservation and environment advocates that watchdog our federal government,” Defenders CEO Jamie Rappaport Clark said.
Defenders pointed to a 2013 decision that found environmental groups could intervene in a dispute involving the use of off-road vehicles in a New Mexico national forest. The majority said they could, but Gorsuch dissented, concluding that the Forest Service could adequately defend the environmentalists’ interests. Defenders said Gorsuch, in the dissent, displayed “an alarming lack of understanding or respect for the different roles the federal government and agency watchdogs play.”
Trip Van Noppen, president of the nonprofit environmental law firm Earthjustice, said that a review of Gorsuch’s writings and opinions “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 Clean Water Act.”
Despite slightly more than 10 years as a judge on the 10th Circuit Court of Appeals in Denver, speculation about how Gorsuch might rule on issues affecting agriculture or the environment rests on a relatively sparse paper trail.
“We don’t have an extensive environmental record to evaluate in predicting what kind of a justice Gorsuch would be on environmental matters,” writes UCLA environmental law professor Ann Carlson on Legal Planet.
“In terms of outcomes, one can't really guarantee from Judge Gorsuch's legal philosophy how cases will turn out,” Crowell & Moring attorney Thomas Lorenzen said in an interview on E&E TV. “He goes where the law takes him.”
Lorenzen added, however, that Gorsuch is “skeptical of excessive government power, executive power,” and that his position on the Chevron doctrine actually differs from that of the late Supreme Court Justice Antonin Scalia, who supported Chevron.
In one case, Gorsuch had to rule whether an energy company could cross a rancher’s land to get access to a well on mineral rights owned and licensed by the Bureau of Land Management. By 2009, developers had drilled three successful wells adjacent to Stull’s property. They accessed two of the wells via a road across Stull’s ranch with his permission. But when a unit operator breached the terms for access, Stull revoked that permission.
Stull Ranches, in northwestern Colorado, said granting access would disturb a grouse hunting business it ran on the property.
In the 2014 decision, Gorsuch and the other two judges ruled for Entek, the energy company, upholding the legality of a “unitization” agreement covering 40,000 acres including the ranch. The Focus Ranch Unit Agreement adopted in 2013, Gorsuch wrote for the panel, “seeks to ensure the efficient distribution of mining assets and profits among the region’s mineral leaseholders.”
But he went back nearly 100 years for the law upholding Entek’s right to access. “No one seriously disputes that Entek may enter Stull’s surface estate above a particular mineral lease to explore or mine the part of that leasehold that lies under Stull’s surface,” he wrote. “This right clearly traces back to the federal government’s first reserved right in the 1916 Stock-Raising Homestead Act — the right to ‘reenter and occupy’ as much of the surface as needed for purposes “reasonably incident” to the mining of minerals beneath.”
Western landowners who may own their land but not the mineral rights below, know their land may be subjected to energy development by the mineral owner, and Stull acknowledged that the Stock Raising Homestead Act entitled the unit operator, Entek, to use his surface to access the minerals beneath his property. But he asserted that using his land to access minerals under other properties required his express consent.
“The Entek case affirms that private lands may soon bear more mineral development impacts,” Tara Righetti, an assistant professor specializing in oil and gas law at the University of Wyoming College of Law, wrote this summer. Although the case concerned only roads, “the potential ways an operator could use private property are seemingly limitless: gathering lines, wastewater injection wells, man camps, gas storage, drill sites, pits, or any other use related to mineral extraction anywhere in the unit,” Righetti said.
But it’s Gorsuch’s views on the Chevron doctrine that have drawn the most attention from legal observers and pundits. In his opinion last year in an immigration case, Gutierrez-Brizuela v. Lynch, he said that “Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive).”
He said that Chevron and a 2005 Supreme Court decision, Brand X, have allowed “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. Maybe the time has come to face the behemoth.”
“Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government,” Eric Citron of Goldstein & Russell wrote on SCOTUSblog.
UCLA law professor Clarkson says “a repudiation of Chevron deference would mark a sea change in administrative and environmental law … that current justices on the Supreme Court have not embraced.” Nevertheless, she predicted that were he called on to “weigh in on a Trump EPA’s interpretation of an environmental statute, one would guess that he would strike down anti-environmental interpretations that seem inconsistent with — or highly unlikely interpretations of — statutory language.”