President Donald Trump announced Tuesday that Neil Gorsuch would be his nominee for the vacant seat on the Supreme Court.
The environmental community was quick to react. The role of the Supreme Court in upholding or invalidating environmental regulation has been crucial over the years — and the Clean Power Plan, one of the most important climate actions of the Obama Administration, is expected to be heard by the next court.
While Gorsuch doesn’t have much history on environmental issues, his overall approach to regulation suggests that he will not be on the side of the environment.
“With Trump torching the Constitution and the climate, now isn’t the time to approve an extreme Supreme Court nominee,” Bill McKibben, founder of 350.org, said in a statement. “Gorsuch is a friend of fossil fuel companies and a foe of workers, the disabled, and the environment.”
Others chimed in.
“Neil Gorsuch is a pitch-perfect President Trump nominee for the Supreme Court — a carbon-copy of Scalia who is both radical and dangerous,” said Tiernan Sittenfeld with the League of Conservation Voters. “The courts are the final arbiters of the cases that can determine the success or failure of the bedrock environmental safeguards that protect the health of our families, as well as the civil rights that underpin our democracy.”
(As an odd aside, under former President Ronald Reagan, Gorsuch’s mother was appointed head of the EPA. She dismantled much of the agency’s work, eventually leaving under a cloud of mismanagement and Congressional contempt. It’s not apparent that his mother’s history will play a role in Gorsuch’s interpretation of the EPA’s rights, but it is a concerning link.)
Goodbye, Chevron Deference
If you didn’t know or care what the Chevron Deference was before Gorsuch’s nomination, that may change.
I actually remember sitting in Admin law class thinking, "I will never need to know Chevron Deference Step 2."
I WAS WRONG.#Gorsuch
— Ari Melber (@AriMelber) February 1, 2017
Also known as the Chevron Doctrine, it comes from a 1986 ruling in Chevron, U.S.A. Inc, v. Natural Resources Defense Council. The very short version is that the court found that administrative agencies know more than the courts about what they regulate, and courts should defer to the agencies’ interpretation of laws in the rule-making process.
Agency rules, such as the Clean Power Plan, do not emerge from the blank slate of a president’s mind. They are rooted in laws, passed by Congress. In the case of the Clean Power Plan, the law is the Clean Air Act, Section 111(d). Once the EPA found that carbon dioxide is a pollutant — a finding upheld by the Supreme Court — it because required to regulate that pollutant. The Clean Power Plan, which limits carbon dioxide from power plants through state-driven plans, is the resultant regulation.
But there is a lot of wiggle room in administrative laws. They are open to interpretation. The Chevron Deference has the courts let the relevant expert agencies interpret the law. In the case of the Clean Power Plan, the EPA interpreted the law to say that it could use that section and it could require states to implement plans. Without the Chevron Deference, the court could find that the EPA needs to interpret its authority more narrowly. It could strike down the Clean Power Plan, and the EPA would have to go back to the drawing board.
Gorsuch, a proponent of a strong judicial branch, appears to disagree with the applicability of the Chevron Deference. In 2016, he wrote that the Chevron decision “seems more than a little difficult to square with the Constitution of the framers’ design.”
In other words, he thinks the judicial branch should be the interpreter of what a statute means to the regulatory agency. Environmental groups read that with dismay.
“Unfortunately, Gorsuch seems likely to overturn precedent and well-established principles of law at the expense of so much we hold dear,” Sittenfeld said.
What about the court’s most important case?
Right now, the Clean Power Plan is working its way through the nation’s court system. Twenty-six states, and a handful of coal and energy companies, have sued the EPA over the rule, saying it has overreached its authority. Arguments for and against have been heard by the D.C. Circuit Court of Appeals, but the body has not yet ruled.
If the Court of Appeals rules in favor of the rule, the challengers will undoubtedly appeal to the Supreme Court. (More on the alternative below.) In the meantime, the Supreme Court issued a stay of the rule until the litigation can be settled.
The Clean Power Plan is seen as the most effective — and possibly only — way to rapidly decrease carbon emissions from the United States. The United States, in turn, is one of the leading contributors to carbon emissions, and is also the leading nation on clean energy technology — technology that could thrive under a carbon-reduction program. This means that curbing carbon emissions in the United States could trigger a global clean energy revolution — and avoid rapid, catastrophic global warming. ThinkProgress’ Ian Millihiser called the Clean Power Plan challenge, “the most important Supreme Court case in human history.”
Another way to look at it would be to say that the next EPA administrator will be the most important person in human history.
The role of EPA Administrator-designee Scott Pruitt
It was noted above that if the rule is upheld at the lower court, challengers will appeal to the Supreme Court. That’s where Gorsuch would come in.
But if the rule is not upheld by the D.C. Circuit Court of Appeals, it will die.
It may die anyway.
That’s because Oklahoma Attorney General Scott Pruitt (R) has been tapped to lead the EPA. Pruitt hates the Clean Power Plan. Under Pruitt’s leadership, Oklahoma joined the legal fight against the plan. He has written op-eds about how much it will cost (although non-partisan analysis says that impacts to human health, as well as damage from climate change, will cost much more). He has made fighting EPA regulation a cornerstone of his career as state attorney general, and there is no way he would direct EPA lawyers to take the Clean Power Plan to the Supreme Court, if it is overruled.
As EPA administrator, there are multiple ways Pruitt could scuttle the Clean Power Plan. He can’t simply take the rule down. Because the rule was promulgated through a long, legally binding process, there is an equally long process for rescinding it.
“The Supreme Court has established that ‘an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change…’ That ‘reasoned analysis’ must be based on permissible factors and be reflected in evidence included within the rulemaking record,” the Congressional Review Service wrote in a legal brief last year.
But, Pruitt could — and would, certainly — direct the EPA to stop defending the rule in court. He could also defund the enforcement arms of the agency. He could direct staff to extend state deadlines for meeting the rule. Some of these actions will almost certainly spark additional lawsuits.
Given the makeup of the Supreme Court if Gorsuch is confirmed, those lawsuits seem less and less likely to pose a problem for the people who oppose the Clean Power Plan.