What SCOTUS Nominee Neil Gorsuch’s Interpretation of Chevron Could Mean For Environmental Administrative Law

What SCOTUS Nominee Neil Gorsuch’s Interpretation of Chevron Could Mean For Environmental Administrative Law

by Philip J. McAndrews III, Staff Contributor


On February 1, 2017, President Donald Trump made arguably one of the most important and lasting decisions a President can make when he nominated Judge Neil Gorsuch to be Associate Justice to the Supreme Court of the United States.[1]  Judge Gorsuch’s originalist reading of the Constitution and textualist approach to statutory interpretation are, for the most part, in lock step with his predecessor Justice Scalia.[2]

Judge Gorsuch does not have a robust history of decisions on matters of environmental law.[3] Yet it is not his previous environmental law-related decisions, but his view of the role of the administrative state, that have environmental groups troubled.[4]  Judge Gorsuch’s views on Chevron doctrine create an uncertain future for environmental law. In a notable departure from Justice Scalia’s jurisprudence, Judge Gorsuch has stated that Chevron deference in an agency’s interpretation of an ambiguous statute is an “. . . unconstitutional revision of a judicial declaration of the law by a political branch.”[5]

In Chevron v. NRDC, the Supreme Court held that when an agency’s interpretation of an ambiguous statute is “reasonable,” courts should defer to the agency’s determination.[6]  This calculation is made through what has become known as Chevron’s “two-step” analysis.[7]  First, the judge must determine whether or not the statutory provision at issue is “ambiguous.”[8]  Second, if the statute is deemed ambiguous, the judge must then determine whether the agency’s interpretation of the statute is considered “reasonable.”[9] If the interpretation is deemed reasonable, considerable deference is given to the agency’s interpretation.[10] This second step of analysis has been the window through which much of the enforcement powers of the Environmental Protection Agency (“EPA”)—and environmental administrative law in general—have passed judicial scrutiny since the Chevron decision.[11]  This decision was expanded in Brand X to require deference to an agency’s current policy choice when it conflicted with prior judicial interpretation of an ambiguous statute.[12]

What Does Gorsuch Say About Chevron?

It is with this interpretation of Chevron’s second step that Judge Gorsuch finds fault.[13]  In his majority opinion in Gutierrez-Brizuela v. Lynch, Judge Gorsuch settled a conflict between an agency’s interpretation of an ambiguous statute and previous judicial decision by granting the agency deference under Chevron.[14]  However, he wrote a separate concurrence to his opinion, in which he states that the Chevron doctrine unconstitutionally diminishes the role of the judiciary in interpreting the law.[15] Judge Gorsuch characterized the Chevron doctrine as “. . . no less than a judge-made doctrine for the abdication of the judicial duty. . .” vested in the judiciary by the Administrative Procedures Act.[16] He argued that, in both purpose and effect, Chevron is contrary to the separation of powers intended by the framers of the Constitution.[17]  According to Gorsuch, the ability of an administrative agency under Chevron and Brand X to “. . . set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive) . . .” has created an administrative state that can supersede any branch of the government.[18]  Indeed, Judge Gorsuch states that the scope and scale of the administrative state should compel a judge to afford less deference to an agency’s statutory interpretation, not more.[19]

Likely Impact on the Supreme Court

Though his interpretation of Chevron was not applied to environmental administrative agencies, statutes, or interpretations thereof per se, Judge Gorsuch does not limit his critique of Chevron to the case at hand in his Gutierrez-Brizuela concurrence.[20] Indeed, Judge Gorsuch concluded his concurrence with his description of “a world without Chevron.”[21]

Judge Gorsuch is considered among the vanguard of this judicial approach against Chevron.[22] This view of administrative law is perhaps the biggest difference between the late Justice Scalia and his potential successor.[23] Justice Scalia had never advocated a removal of Chevron.[24] In fact, he relied on Chevron deference in his dissent in Massachusetts v. EPA, stating that the EPA’s refusal to find that carbon dioxide pollution posed a global danger should have been upheld “. . . on that ground alone. . . .”[25] Justice Clarence Thomas is one of the few jurists who have openly endorsed views similar to Judge Gorsuch’s on the matter.[26]  While the suspension of Chevron deference was applied by the Supreme Court in King v. Burwell, the Court made a point in that case to characterize the situation as an “extraordinary case.”[27]  Moreover, the ideological differences amongst the current conservative justices would make a majority opinion that wholly overturns Chevron unlikely.[28]

What Does This Mean for Environmental Administrative Law?

A lack of Chevron deference to agency interpretations would greatly impact environmental agencies’ abilities to apply statutory directives in a way that ensures their enforcement powers span the wide range of potential environmental issues with which they are tasked to administer.[29]  The EPA has used the deference afforded to it by Chevron to expand its regulatory abilities, particularly in areas of broad environmental concern, such as climate change.[30]

The most immediate case facing the Supreme Court concerning an environmental agency’s discretion and the application of Chevron involves the current stay on the Clean Power Plan (“CPP”) which, if overturned, would allow the EPA to take a greatly expanded role in the regulation of carbon dioxide emissions from power plants.[31] The Court’s decision in King, decided just five weeks prior to the issuing of the final CPP rule, appears to have already impacted the way in which the EPA defended its statutory interpretation for the CPP, as the final rule relies less on Chevron deference than any previous iterations.[32]

While the Trump administration’s “America First Energy Plan,” proposing to eliminate regulations on the coal and oil industries, brings the future of the CPP onto a murky legal and political footing,[33] a possible Supreme Court decision in this case could impact the future of Chevron deference.[34] Judge Gorsuch would have likely voted similarly to the five justices that instituted the stay in the CPP, and may go further to opine on Chevron deference outside of the specifics of the case.[35]

In the (likely) event that the fate of the CPP is decided by the Supreme Court and the (less likely) event that Judge Gorsuch’s confirmation process concludes before the case is heard, “Justice” Gorsuch would be in a fairly small minority on the bench to outright reject the application of Chevron deference in his analysis of the CPP’s final rule, and it is not clear how successful Judge Gorsuch would be in persuading a majority of justices to overturn Chevron.[36]

Nevertheless, as times change both opinions and justices change.  As the recipient of a lifetime appointment, Justice Gorsuch could impact the scope and breadth of the EPA more than any individual cabinet appointee or agency director. This is the primary concern for advocates of environmental law enforcement through the administrative state.[37]  Many fear that Judge Gorsuch’s concurrence in Gutierrez-Brizuela provides a preview of a justice who would spend the next few decades advocating for the removal of one of the agencies’ greatest tools in vigorously enforcing progressive environmental policies.[38]

Even in its current state, however, Chevron deference has been a double-edged sword for environmentalists.[39]  Indeed, the decision in Chevron was one in which an oil company won against the National Resources Defense Council. For this reason, as well as the Court’s decision in King, administrative agencies have already begun adapting their rationales for policy decisions in anticipation of challenges to the Chevron doctrine.[40] Indeed, this appears to be the direction that the EPA is headed: much of the language in the CPP’s final rule is devoted to demonstrating how other interpretations of the statute are not reasonable, rather than relying solely on the argument that their interpretation is one of the reasonable interpretations and should be given Chevron deference.[41] Judge Gorsuch would appear to endorse this approach to agency interpretation; his concurrence in Gutierrez-Brizuela stated that, even without Chevron, the courts “. . . could and would . . . apply the agency’s interpretation when it accords with the best reading of a statute.”[42]

A continued application of this approach would also help the EPA to safeguard its policymaking from the ephemerality of changing administrations.[43]  However, given the broad responsibilities of the EPA, and environmental agencies in general, crafting every rule to defend against every alternative reading of an ambiguous statute is easier said than done.

[1] Ariane de Vogue, President Trump Nominates Neil Gorsuch for Supreme Court, CNN (Feb. 1, 2017, 5:05 AM), http://www.cnn.com/2017/01/31/politics/donald-trump-supreme-court-nominee/index.html.

[2] Eric Citron, Potential Nominee Profile: Neil Gorsuch, SCOTUSBlog (Jan. 13, 2017, 12:53 PM), http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-gorsuch.

[3] John Echeverria, The Fate of Environmental Law in a Trump-Era Supreme Court, Scientific America (Feb. 8, 2017), https://blogs.scientificamerican.com/guest-blog/the-fate-of-environmental-law-in-a-trump-era-supreme-court/?WT.mc_id=SA_TW_ENGYSUS_BLOG (“Gorsuch has participated in only a handful of environmental law cases during his ten years on the U.S. Court of Appeals for the Tenth Circuit, making it difficult to draw any firm conclusions about his stance on environmental law issues.”).

[4] Ann Carlson, Predicting How Neil Gorsuch Would Rule On Environmental Issues, Legal Planet (Jan. 31, 2017), http://legal-planet.org/2017/01/31/predicting-how-neil-gorsuch-would-rule-on-environmental-issues.

[5] Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150 (Gorsuch, J., concurring) (10th Cir. 2016); Citron, supra note 2.

[6] Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842—43 (1984).

[7] Id.; See also National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 at 969 (2005).

[8] Id.

[9] Id.

[10] Id. at 844.

[11] John H. Cushman Jr., Why Environmentalists Are So Worried About Trump’s Supreme Court Pick, Inside Climate News (Feb. 1, 2017), https://insideclimatenews.org/news/01022017/neil-gorsuch-donald-trump-supreme-court-climate-change.

[12] See Gutierrez-Brizuela 834 F.3d at 1150 (Gorsuch, J., concurring).

[13] See Id. at 1144.

[14] See generally Id. (majority opinion).

[15] Id. at 1152-53 (Gorsuch, J., concurring).

[16] Id. at 1151-52.

[17] Id. at 1154.

[18] Id. at 1155.

[19] Id.

[20] See Gutierrez-Brizuela 834 F.3d 1142 (Gorsuch, J., concurring).

[21] Id. at 1158.

[22] Citron, supra note 2; Billy Corriher, Neil Gorsuch Would Be A Dream Justice For Corporations Suing The Government, Center for American Progress (Feb. 1, 2017, 11:23 AM), https://www.americanprogress.org/issues/courts/news/2017/02/01/297885/neil-gorsuch-would-be-a-dream-justice-for-corporations-suing-the-government.

[23] Citron, supra note 2.

[24] “The Supreme Court has upheld nondelegation challenges to congressional enactments in only a handful of cases, both decided in the 1930’s, and the late Justice Scalia wrote an opinion for the modern Court rejecting a nondelegation challenge to the Clean Air Act.” John Echeverria, supra note 3.

[25] Massachusetts v. EPA, 549 U.S. 497, 552–553 (Scalia, J., dissenting) (2007).

[26] Citron, supra note 2; Corriher, supra note 24.

[27] King v. Burwell, 135 S.Ct. 2480, 2488-2489 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 210, 159 (2000)).

[28] Joan Biskupic, Gorsuch And Roberts, A Relationship That Could Define American Justice, CNN (Feb. 3, 2017, 6:04 AM), http://www.cnn.com/2017/02/03/politics/neil-gorsuch-john-roberts/index.html.

[29] Cushman Jr., supra note 10; Peter Glaser, et al., President Trump Nominates Judge Neil Gorsuch To The Supreme Court, Environmental Law And Policy Monitor (Feb. 1, 2017), http://www.environmentallawandpolicy.com/2017/02/president-trump-nominates-judge-neil-gorsuch-supreme-court.

[30] Cushman Jr., supra note 10.

[31] Environmental Law – Clean Air Act – EPA Interprets the Clean Air Act To Allow Regulation Of Carbon Dioxide Emissions From Existing Power Plants, 129 Harv. L. Rev. 1152 (February 2016).

[32] The final rule of the Clean Power Plan issued by the EPA cites the King decision four times. Id.

[33] “President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.” An America First Energy Plan, The White House, https://www.whitehouse.gov/america-first-energy.

[34] Richard Wolf, How Neil Gorsuch Could Impact Current And Future Supreme Court Cases, USA Today (Feb. 2, 2017, 7:06 AM), http://www.usatoday.com/story/news/politics/2017/02/02/neil-gorsuch-supreme-court-cases/97367082.

[35] Cushman Jr., supra note 10.

[36] Jonathan R. Nash, Gorsuch On Supreme Court Might Impact Federal Agencies Most Of All, The Hill (Feb. 2, 2017), http://thehill.com/blogs/pundits-blog/the-judiciary/317455-gorsuch-pick-for-supreme-court-might-impact-federal-agencies; Wolf, supra note 32.

[37] Cushman Jr., supra note 10.

[38] Id.

[39] See generally Chevron, U.S.A., Inc., 467 U.S. 837.

[40] Environmental Law – Clean Air Act – EPA Interprets the Clean Air Act To Allow Regulation Of Carbon Dioxide Emissions From Existing Power Plants, supra note 30 at 1156-60.

[41] Id.

[42] Gutierrez-Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring).

[43] Environmental Law – Clean Air Act – EPA Interprets the Clean Air Act To Allow Regulation Of Carbon Dioxide Emissions From Existing Power Plants, supra note 30 at 1156-60.