March 17, 2017

As Judge Neil Gorsuch proceeds through the Senate confirmation process, we are continuing to review his jurisprudence while assessing how he might affect the Supreme Court should the Senate approve his nomination.  In the coming weeks, we will be publishing our analyses in a series of client alerts focusing on individual subject matters.  This alert discusses environmental law.

Judge Gorsuch brings an interesting background to his jurisprudence on environmental law.  On the one hand, he is a native of the West and an avid outdoorsman; he was skiing when he learned about Justice Scalia's death, and he is reportedly fond of fly-fishing and rowing.  On the other hand, Judge Gorsuch is the son of Anne Gorsuch Burford, who was a champion of environmental deregulation as the head of the Environmental Protection Agency ("EPA") under President Reagan.  Perhaps reflecting this background, Judge Gorsuch has often sided with environmental groups and regulators while openly criticizing the continued viability of Chevron deference--a doctrine that has played, and will continue to play, a key role in the Court's approach to many environmental disputes.  See, e.g., Michigan v. EPA, 135 S. Ct. 2699 (2015). 

Judge Gorsuch's Environmental Law Jurisprudence

Judge Gorsuch's most important judicial opinion in this area does not even involve environmental law.  In an immigration case called Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), Judge Gorsuch wrote a concurring opinion that criticized Chevron deference as "no less than a judge-made doctrine for the abdication of the judicial duty" to say "what the law is," and he opined that the doctrine dangerously consolidates executive, legislative, and judicial power in the executive branch.  Id. at 1152.  He further criticized the reasoning of National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005), where the Court held that an agency's statutory interpretation overrides a preexisting judicial construction of the same statute unless the court declares that the statute is unambiguous.  According to Judge Gorsuch, Brand X raises grave questions about the separation of powers by requiring courts to "overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies."  Gutierrez-Brizuela, 834 F.3d at 1150. 

Despite his skepticism of Chevron and its progeny, Judge Gorsuch has respected precedent requiring deference and has upheld agency constructions of statutes.  In United States v. Magnesium Corp. of America, 616 F.3d 1129 (10th Cir. 2010), for example, Judge Gorsuch held that the EPA was permitted to change its interpretation of a toxic-waste regulation without inviting public "notice and comment" on the change--at least as long as the agency's previous interpretation was not "final."  Id. at 1140-41.  His opinion recognized an outgrowth of Chevron deference, Auer deference, which requires courts to give "substantial deference" to an agency's interpretation of its own ambiguous regulations.  Id. at 1135 n.5.

In another case involving administrative action, Scherer v. U.S. Forest Service, 653 F.3d 1241 (10th Cir. 2011), Judge Gorsuch rejected a facial challenge under the Administrative Procedure Act to a Forest Service policy imposing an "amenity fee" on visitors to Mount Evans, a mountain near Denver surrounded by a national forest.  Although he did not cite Chevron, Judge Gorsuch concluded that the fee policy was facially valid and within the scope of the Forest Service's authority under the Recreation Enhancement Act.  See id. at 1244.

The EPA did not fare as well in Hydro Resources, Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010).  Writing for an en banc Tenth Circuit, Judge Gorsuch held that the EPA had erroneously construed a regulation in determining that a parcel of property in New Mexico qualified as "Indian lands," and that a company's application for a mining permit therefore did not fall under the agency's purview.  He explained that the EPA's regulation had defined the phrase "Indian lands" synonymously with the same phrase in a federal criminal statute, but the Supreme Court had interpreted the statute in a way that was irreconcilable with the EPA's determination.  See id. at 1134-35.  Although the EPA did not "claim[] any entitlement to deference," Judge Gorsuch expressed skepticism that the agency's interpretation would merit deference in any event given the controlling Supreme Court precedent.  Id. at 1146.

Finally, Judge Gorsuch's panel opinion in Energy & Environment Legal Institute v. Epel, 793 F.3d 1169 (10th Cir. 2015), is notable because it rejected a challenge to Colorado's renewable-energy law under the U.S. Constitution's Dormant Commerce Clause.  Although the law "surely regulates the quality of a good sold to in-state residents," and although it likely impacts the price of electricity in and out of state, the law passed constitutional muster because it "doesn't directly regulate price in-state or anywhere for that matter."  Id. at 1173.  Reaching the opposite conclusion and invalidating the law, Judge Gorsuch reasoned, would "risk serious problems of overinclusion," and transform the Dormant Commerce Clause into an exceedingly powerful "weapon" that would harm the ability of states to set standards and control conduct within their borders.  Id. at 1175. 

Implications for the Court

If confirmed to fill Justice Scalia's seat on the Court, Judge Gorsuch will not have to wait long before confronting important issues of environmental law, including several unsettled questions arising under the Clean Water Act.  For example, the Court recently granted certiorari in a case involving whether courts of appeals have original jurisdiction under 33 U.S.C. § 1369(b)(1) to review challenges to the government's determination of the scope of its jurisdiction under the statute.  Nat'l Ass'n of Mfrs. v. Dep't of Def., No. 16-299.  The Court also might grant certiorari in a future case to reexamine the scope of the EPA's regulatory authority under the Act--an issue that split the Justices 4-1-4 in Rapanos v. United States, 547 U.S. 715 (2006), and that has continued to cause confusion in the lower courts.  And the Court might review elements of the EPA's Clean Power Plan, which is subject to many legal challenges in the lower courts and is currently the subject of en banc review in the U.S. Court of Appeals for the D.C. Circuit.  See West Virginia v. EPA, No. 15-1363. 

Still other disputes could reach the Court involving efforts by the Trump Administration to revise environmental regulations issued during the Obama years.  Indeed, President Trump recently signed an executive order directing the EPA and the U.S. Army Corps of Engineers to issue a proposed rulemaking that rescinds or revises their joint 2015 Clean Water Rule, which the agencies released in an effort to clarify the jurisdictional scope of the Clean Water Act.  See Press Release, The White House, Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule (Feb. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic. 

We also expect that the Trump Administration will take a fresh look at many other EPA rules and decisions from the past decade, including the waiver that the agency gave to California under the Clean Air Act.  Any such changes in agency policy and practice could spark new waves of litigation in which the EPA likely would seek deference for its changed course.  Those legal challenges, in turn, could provide opportunities for the Court to consider many of the thorny issues it avoided in Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015), but that three Justices raised in writing separately in that case, including the distinction between "substantive" and "interpretive" rules, the remedies available for agency departures from formal rulemaking requirements, and the propriety of Auer deference.  The Trump Administration's announced goal of reducing the number of regulations also could lead to increased informal agency activity, possibly sparking new disputes about whether an agency has engaged in "final agency action" under the Administrative Procedure Act--an issue that frequently arises in this area of law.  See, e.g., U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016); Sackett v. E.P.A., 566 U.S. 120 (2012).


Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work in the firm's Appellate and Constitutional Law or Environmental Litigation and Mass Tort practice groups, or any of the following:

Appellate and Constitutional Law Group:
Theodore J. Boutrous, Jr. - Los Angeles (+1 213-229-7000, tboutrous@gibsondunn.com)
Mark A. Perry - Washington, D.C. (+1 202-887-3667, mperry@gibsondunn.com)
James C. Ho - Dallas (+1 214-698-3264, jho@gibsondunn.com)
Caitlin J. Halligan - New York (+1 212-351-4000, challigan@gibsondunn.com)

Environmental Litigation and Mass Tort Group:
Daniel W. Nelson - Washington, D.C. (+1 202-887-3687, dnelson@gibsondunn.com)
Peter E. Seley - Washington, D.C. (+1 202-887-3689, pseley@gibsondunn.com)
Avi S. Garbow - Washington, D.C. (+1 202-955-8558, agarbow@gibsondunn.com)  


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