Supreme Court

Former DOJ official Lorenzen talks Gorsuch, future of environmental law and Chevron

Following President Trump's nomination this week of Judge Neil Gorsuch to the Supreme Court, how might Gorsuch shape the future of environment and energy cases before the court? During today's OnPoint, Thomas Lorenzen, a partner at Crowell & Moring and a former assistant chief in the Environment and Natural Resources Division at the Department of Justice, explains how Gorsuch could compare to the late Justice Antonin Scalia in his interpretation of the law. Lorenzen, who has opposed U.S. EPA's Clean Power Plan on behalf of electric cooperatives, also talks about Gorsuch's record on energy and environment cases.


Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. With me today is Thomas Lorenzen, a partner at Crowell & Moring and a former assistant chief in the Environment and Natural Resources Division at the Department of Justice. Tom has opposed EPA's Clean Power Plan on behalf of electric co-ops. Tom, it's nice to have you on the show.

Thomas Lorenzen: Pleasure to be here again.

Monica Trauzzi: So, Tom, we have a new Supreme Court nominee finally. President Trump has chosen Judge Neil Gorsuch from the 10th Circuit Court of Appeals. What are your initial impressions?

Thomas Lorenzen: Neil is someone I worked with when he was at the Department of Justice. I was very impressed with him then. I am very impressed with him as a judge. He is definitely a conservative in the mold of Justice Scalia. People may not always agree with where he's going to go in the law, but I don't think anyone disputes that he's highly qualified to sit on the Supreme Court.

Monica Trauzzi: Right, and initial reactions seem to indicate that this choice by the president won't move the court too far from where it was prior to Justice Scalia's passing. How might he compare to Scalia, though, on how he handles energy and environment cases?

Thomas Lorenzen: Well, what I have experienced of Judge Gorsuch is that he's not driven by outcomes but by certain legal principles. He is skeptical of excessive government power, executive power. He has questioned the Chevron doctrine. There's an area where he might, in fact, differ significantly from Justice Scalia. Justice Scalia was actually a proponent of Chevron, felt it kept the law from ossifying by having it being dictated by judges. A Justice Gorsuch would be expected to sort of push back against that and say it violates the separation of powers. So there is a significant difference. In terms of outcomes, one can't really guarantee from Judge Gorsuch's legal philosophy how cases will turn out. You look at the cases he decided on the 10th Circuit, just as many of them were sort of pro-EPA as were anti-EPA. He goes where the law takes him, as he said from the podium last night.

Monica Trauzzi: Some environmental groups have suggested that he might take the court to the far right, saying he's a threat to the Clean Air Act and the Clean Water Act. Could he be more aggressive with his interpretation of those laws?

Thomas Lorenzen: He could. I expect he will despite his views about Chevron and how that differs from Scalia, being adherent to Justice Scalia's statement in the majority opinion in [Utility Air Regulatory Group v. EPA], that the court is going to demand clarity from Congress when EPA is using a statute to try and find powers to regulate vast swaths of the economy. He's going to be looking for clear direction and not, I suspect, be willing to give EPA the benefit of the doubt where the language is too vague.

Monica Trauzzi: His mom was EPA administrator under President Reagan, some controversies there. Is that just an interesting nugget that folks like us in the energy and environment world like to know, or do you think there's something significant there?

Thomas Lorenzen: I think it's a fascinating nugget. What's more, I think, indicative of where he'll go is that he comes from sort of a conservative pedigree. His mom served in, I believe it was — well, I don't even remember which White House, whether it was Reagan or Bush, but he comes from those roots and that sort of philosophy about the limited role of federal government. I expect we will see that in his opinions.

Monica Trauzzi: Next steps, obviously this goes before the Senate. We were talking before the show about how that might actually go. We've already seen boycotts happening with Democrats for Trump's Cabinet nominees. How do you think the confirmation will go?

Thomas Lorenzen: I think it will be difficult. I think he will be asked a lot of questions trying to discern what his opinions are on various issues of the day, ranging from environmental regulation to Chevron to immigrant rights and abortion. But I expect, as with past sophisticated nominees, and he is definitely a sophisticated nominee, he will say that he's not going to comment on cases that may come before the court, just as Chief Justice Roberts did when he was successfully before the Senate during his confirmation.

Monica Trauzzi: And President Trump has already said that he thinks Majority Leader McConnell should go for it when it comes to the nuclear option. Do you think he will? Get to that point?

Thomas Lorenzen: I think the president may have jumped the gun. I'm not sure that that will be necessary. You know, I've not talked with Chuck Schumer about this, but the Democrats are not in a position of power here. I think that their role may be more effective in really pressing Judge Gorsuch on his views of the issues than simply trying to block his nomination altogether because that right to filibuster Supreme Court nominees may be something they need later on down the road when they face a nominee who's potentially, in their views, more extreme.

Monica Trauzzi: And any guesses on a timeline, or is it too difficult to tell?

Thomas Lorenzen: I think it's too difficult to tell at this point. There have been so many efforts to slow down nomination processes. We're seeing this with the Cabinet secretaries. We saw a suspension of Senate rules in, I think it was the Finance Committee today to get two of the nominees through. So far that hasn't happened with the Environment Committee and AG Pruitt's nomination to be administrator, but all of those things are going to build up, and I expect to see the same thing with Judge Gorsuch.

Monica Trauzzi: All right. It'll be interesting to watch for sure.

Thomas Lorenzen: It will indeed.

Monica Trauzzi: Thank you for coming on the show. Nice to see you.

Thomas Lorenzen: Great to see you.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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