POLITICS
02/13/2017 04:01 pm ET

Trump’s Supreme Court Pick Wants To Gut Legal Rule That Environmental Groups Rely On

Even Antonin Scalia supported the doctrine. But not Neil Gorsuch.

Back in 1984, the Supreme Court ruled in favor of a huge oil company in a landmark case laying out how much deference courts should give to a federal agency’s interpretation of the laws it enforces. The answer in nonlegal terms was “a lot.”

Ironically, that meant a major environmental group lost to President Ronald Reagan’s more conservative Environmental Protection Agency.

Some three decades later, the environmentalists are the ones vigorously defending the legal doctrine that is based on Chevron U.S.A. v. Natural Resources Defense Council. And the leading critic of so-called Chevron deference is Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee and a man whose mother ran the EPA when the Chevron case first went to court.

Eliminating the Chevron doctrine would be a radical move today. It’s a cornerstone of U.S. administrative law, so widely accepted that it was endorsed by the very conservative Justice Antonin Scalia (the man whose Supreme Court seat Gorsuch is set to take over).

The Supreme Court’s ruling, written by then-Justice John Paul Stevens for a unanimous court, directs judges to respect an agency’s interpretations of those laws it’s in charge of administering where Congress’ meaning in writing the law is not clear. Nixing the doctrine would give judges more leeway to second-guess agencies’ rules.

Environmental groups argue, in particular, that undoing Chevron deference would cripple the federal government’s ability to enforce rules against pollution, even long after Trump leaves the White House. EPA regulations are based on extensive analysis of science to inform the legal standards set by Congress.

“If you abandon agency deference, it really means that you want to ignore scientific and technical analysis and evidence in policymaking,” Yogin Kothari, a Washington representative with the nonprofit Union of Concerned Scientists, told The Huffington Post.

“The idea of undoing Chevron deference is a recipe for stymying science-based safeguards for public health, safety and the environment,” he added. “Chevron deference allows us to actually ensure that we don’t have judges overriding scientific expertise … and substituting their own views with limited information.”

Gorsuch doesn’t see it quite that way.

The Supreme Court nominee, who currently sits on the U.S. Court of Appeals for the 10th Circuit, made his views clear in August in an immigration case called Gutierrez-Brizuela v. Lynch. In a concurring opinion, Gorsuch wrote, “[T]he fact is Chevron … permit[s] 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.”

In other words, Gorsuch said, federal agencies have too much unfettered power.

Jonathan Ernst/Reuters
Supreme Court nominee Neil Gorsuch looks at a landscape painting in Sen. Dianne Feinstein's Washington office as he arrives for their meeting on Feb. 6.

Although the 10th Circuit case was not about the EPA, Trump and his supporters in Congress would clearly apply that criticism to the environmental agency.

Trump put Myron Ebell, a once-fringe conspiracy theorist who rejects the widely accepted science on manmade global warming, in charge of the EPA transition team. He nominated Oklahoma Attorney General Scott Pruitt, who made his reputation suing the EPA 13 times, to lead the agency. A policy memo leaked to Axios outlined proposed cuts to the EPA’s budget, including slashing hundreds of millions from grants to states and Native American tribes, climate programs, and environmental programs and management. Indeed, some environmental researchers took the memo as evidence that Trump wants to permanently cripple the EPA. Inside EPA reported that the administration was also planning to slash the agency’s enforcement division.

At least two of the president’s strongest supporters in Congress seem to be on board with any anti-EPA push. Rep. Lamar Smith (R-Texas) held a hearing last week on “Making EPA Great Again,” at which three of his four witnesses were a coal lawyer, a chemical industry lobbyist and a libertarian scholar who recently accused the agency of “regulatory terrorism.” Meanwhile, Rep. Matt Gaetz (R-Fla.) introduced a bill to “completely abolish” the EPA by the end of next year.

Although she led the EPA, Gorsuch’s mother, the late Anne Gorsuch Burford, might well have agreed with the idea that the agency needs to be restrained. (She died in 2004.)

During her nearly two-year tenure at the EPA, described by The Washington Post as “tumultuous,” Burford gutted the budget, coddled the chemical industry, purged scientists from the agency’s ranks and oversaw a sharp drop in lawsuits against polluters. She resigned in March 1983 (two months before the Supreme Court agreed to hear the Chevron case) amid what some have called “the worst scandal in the history of the Environmental Protection Agency.” The opprobrium erupted after Burford refused to hand over documents relating to her handling of the $1.6 billion toxic waste Superfund. She was the first federal agency director to be held in contempt of Congress.

But environmental groups argue that Americans need the federal government to play a strong role in protecting the environment.

“Whether Republicans like it or not, we live in a society that has a lot of administrative agencies trying to provide safeguards against all kinds of things, not just environmental, but consumer protection, labor and more,” Patrick Gallagher, legal director for the Sierra Club, told HuffPost. “This regulatory state arose over many decades, including following the Great Depression, because of a need to protect common people from the excesses of corporate greed, technology and industrialization.” 

Still, Gorsuch’s skepticism of executive power could become a check on Trump as well. Gorsuch called the president’s attacks on a federal judge who had blocked his travel ban “disheartening” and “demoralizing,” in what may be the first case of a Supreme Court nominee publicly criticizing the White House.

“I would imagine, based on Gorsuch’s history and previous opinions, that he might strike down some of this executive power Trump is exercising right now,” said David Kemp, a lawyer at the legal information site Justia. “The [Gutierrez-Brizuela v. Lynch] opinion exalts judicial independence and separation of powers and condemns executive overreach. He might then stand up to executive overreach, even by President Trump.”

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