SUPREME COURT

Would Gorsuch's skepticism on Chevron spell doctrine's demise?

If confirmed, Judge Neil Gorsuch would bring a deeply skeptical view of the Chevron doctrine — a legal standard that often helps agencies win in environmental litigation — to the Supreme Court.

Gorsuch's views on Chevron would likely color how he would rule on cases involving environmental regulations. As a result, it would likely be harder for federal agencies to convince the high court that their interpretations of laws are the correct ones, legal experts predicted.

But despite Gorsuch's strong views on the doctrine, it's probably too early to herald the demise of Chevron.

"We're not going to get anywhere where a court simply ignores agency interpretations," said Patrick Parenteau, a law professor at Vermont Law School. "I can't imagine a day when the court simply says, 'Oh, that's not relevant.'"

Trump yesterday evening announced his choice of Gorsuch, a 10th U.S. Circuit Court of Appeals judge and the son of President Reagan-era U.S. EPA Administrator Anne Gorsuch Burford, to fill the seat left vacant by last February's death of Justice Antonin Scalia (E&E Daily, Feb. 1).

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As a judge, Gorsuch has ruled on a few environmental and energy cases. But it's a concurring opinion on the Chevron doctrine in a case involving undocumented immigrants that has attracted the most attention in environmental law circles.

Under Chevron, courts give deference to federal agencies when Congress has been silent or ambiguous on a subject. The two-step Chevron test generally involves deciding whether a statute is ambiguous and then whether an agency has been reasonable in its interpretation.

The doctrine is named after the 1984 Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.

In August 2016, Gorsuch wrote in his scathing, 23-page concurring opinion that Chevron was a "judge-made doctrine for the abdication of judicial duty" and a "goliath of modern administrative law" that's "more than a little difficult to square" with the Founding Fathers' intentions.

"We managed to live with the administrative state before Chevron. We could do it again," Gorsuch wrote (Greenwire, Aug. 24, 2016).

The opinion made waves in legal circles, with some experts calling it the most robust critique ever of Chevron by a sitting circuit court judge. It coincided with calls by congressional conservatives to get rid of the doctrine on the grounds that it gives too much power to federal agencies.

In most areas, such as his originalist and textualist view of the law, Gorsuch is much in the mold of the late Scalia, the high court's strongest conservative voice.

But Gorsuch's skepticism of the Chevron doctrine is one area where "he and Scalia probably sharply diverged," said Thomas Lorenzen, a former Justice Department environment attorney.

"Scalia was one of the most ardent defenders of a very broad Chevron doctrine while he was on the court," said Jonathan Adler, a law professor at Case Western Reserve University. "He believed it was important to have rules that constrain the ability of judges to substitute their policy preferences for those of the executive branches."

Both Scalia and Gorsuch, though, were "very attuned" to the future of the administrative state in the context of the separation of powers, Adler added.

"Scalia's answer was to say that agencies are politically accountable to the president; better let them make the calls," Adler said. "And Gorsuch's response was essentially, 'Wait a second, it's the obligation of the judiciary to say what the law is.'"

Legal scholars cautioned against viewing Gorsuch as an automatic vote against environmental protections. In 2015, he upheld Colorado's renewable energy standard against a constitutional challenge by a conservative group. That decision stemmed from his skepticism of the Constitution's dormant Commerce Clause.

But on the high court, Gorsuch's skepticism of the Chevron doctrine may translate to votes on the bench against Obama administration environmental regulations because he'll be less likely to defer to EPA on environmental regulations.

"When an agency adopts a rule, he would join with Roberts in saying it has to be clear that Congress was clear," Parenteau said.

The Supreme Court has already been less willing to defer to agencies during Chief Justice John Roberts' tenure. In a recent majority opinion in a lawsuit challenging the Affordable Care Act, Roberts wrote that Chevron didn't apply because the health care case was "extraordinary" and centered on a question of "deep 'economic and political significance.'"

And shortly before his death, in two cases involving major Obama administration air pollution rules, Scalia issued majority opinions that didn't give EPA deference. Those opinions scaled back EPA rules for industrial emissions of greenhouse gases and for power plants' toxic air pollution (Greenwire, Feb. 19).

Conservative Justice Clarence Thomas also issued a concurrence in the power plant case, Michigan v. EPA, that called for limiting the Chevron doctrine.

Gorsuch's stance against Chevron "will lead to a lot more tenure law review articles for ad-law profs," predicted Christopher Walker, a professor at the Ohio State University Moritz College of Law.

But legal scholars say that courts will continue to defer to agency interpretations.

"A dose of legal realism: deference to agency interpretations will persist, whatever the nominal rules. Judges know how much they don't know," Adrian Vermeule, a conservative legal scholar at Harvard Law School, tweeted today.

Getting rid of Chevron might not necessarily be a good thing for President Trump, according to legal scholars, as he'll likely need it in place to push through an anti-regulatory agenda.

"Getting rid of Chevron during a time when Republicans control the executive branch may be somewhat antithetical," Lorenzen said.

Without Chevron, more liberal judges might not otherwise favor conservative actions to strike down regulations.

Michael Burger, executive director of the Sabin Center for Climate Change Law, said that the concerns about Chevron from conservatives seem to assume that there are going to be conservative judges reviewing "more liberal executive agency decisions, and therefore there's a need for this correction."

He called it "odd" that Chevron, which was not a controversial opinion, has become the center of attention.

"It's odd that the Chevron doctrine has become this sort of cause of the Republican Party, and of the right wing of the Republican Party in particular," Burger said. "The Chevron doctrine is a fairly straightforward analytical tool that courts use to maintain a proper balance of powers between Congress, the executive branch and the courts."

The alternative, wrote Seth Jaffe, a partner at Foley Hoag LLP, in a blog post this week, "is for courts to decide all questions of agency authority. But haven't conservatives railed against unelected judges for years? Bureaucrats are unelected, but at least they work for the elected president."

"Isn't EPA more likely to be responsive to President Trump than federal judges would be?" Jaffe wrote.

Next steps

Gorsuch today met with Senate Majority Leader Mitch McConnell (R-Ky.) and Vice President Mike Pence, kicking off the confirmation process in the Senate.

From there, Ed Pagano, who worked previously in the Obama administration as the president's liaison to the Senate, predicted that the Senate will spend at least two months reviewing Gorsuch's record and holding a confirmation hearing that could last anywhere from two to four days.

Gorsuch will likely be asked to respond to written questions before the Senate Judiciary Committee holds a vote on his nomination. If approved, his nomination will go to the Senate floor for a vote. The whole process is likely to last three to four months based on past precedent, Pagano said.

While some Senate Democrats said they were open to meeting with Gorsuch and going through with the normal confirmation process, other Democrats pledged not to consider the nominee.

"From the Democratic perspective, a lot of folks are feeling that Merrick Garland — he was not given a hearing — was not treated fairly," Pagano said, referring to former President Obama's unsuccessful Supreme Court nominee. "There's already some bad blood from that. So I do feel like it's going to be a pretty partisan process."

Twitter: @apeterka Email: areilly@eenews.net

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