(1) He resents public interest legal organizations, like EPIC.
Before he was a judge, Neil Gorsuch published an inflammatory article in the National Review, which claimed that “liberals” were abusing the court system in the fight for social reform: “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”
He may have well been writing about EPIC. Litigation is one of the most important tools in EPIC’s toolbox, and one that we have wielded with great result—from establishing that timber harvest plans need to consider cumulative effects in EPIC v. Johnson to advancing protection for the habitat of endangered species in Marbled Murrelet, to name a few.
Instead of relying on the courts, Gorsuch offers his “friendly” advice to groups like EPIC: achieve your aims through political advocacy.
(2) He is opposed to campaign finance laws.
Gorsuch is on record that political contributions are a form of speech. And as speech, laws that restrict this right to “free speech” should be subject to the highest form of constitution protection, known as “strict scrutiny.” This faulty line of argument is the backing behind major cases, such as Citizens United, which fundamentally undermine our democracy by giving louder “voices” to moneyed interests.
(3) Gorsuch is a foe of federal regulation
If Scalia had one thing going for him, he understood the importance of federal regulation, and afforded appropriate deference to agency rulemaking. Of course, this cuts both ways, as agencies promulgate rules that work both for and against the environment. But given that the bulk of federal environmental law has its roots in agency rules, a relative hands-off approach by the judiciary is a good thing.
Scalia was a strong proponent of the Chevron doctrine, a principle of federal administrative law that gave agency’s deference to interpreting ambiguous or vague statutory language. Gorsuch shows his greatest ideological difference from Scalia in his opposition to Chevron deference. Gorsuch has staked a lonely position among the judiciary, calling for the abolition of Chevron deference, writing, “We managed to live with the administrative state before Chevron. We could do it again.”
Gorsuch’s position is hostile to an active and engaged federal government. EPIC stands with federal administrative law, warts and all.
(4) His mom was anti-environment EPA Administrator.
Environmental antipathy may well run in Gorsuch’s blood. Gorsuch’s mother, Anne M. Gorsuch, was head of the EPA under President Reagan. As EPA Administrator, Anne Gorsuch was more focused on gutting the agency, by slashing the budget by 22% and erasing EPA regulations, than protecting the environment (you know, her job). Because of allegations that she was mismanaging the Superfund program Anne Gorsuch was ordered by Congress to turn over records. She refused and was held in contempt of Congress, and later resigned. Reagan was then forced to bring back William Ruckelshaus, the EPA’s first administrator.
Surely, Neil Gorsuch shouldn’t be held accountable for the sins of his mother. But it makes EPIC wonder: does the apple fall far from the tree?
Two reasons why Gorsuch might be okay.
(1) He is a Westerner and avid outdoorsman
Gorsuch is a fourth-generation Coloradoan. He is also an outdoorsman, who lists rowing, skiing, and fly-fishing as his passions. At his home outside of Denver, Gorsuch and his family raise horses, chickens and goats.
Our greatest environmental Supreme Court Justice, William O. Douglas, also held a fondness for the outdoors. A fellow Westerner, Douglas was a fierce advocate for environmental protection. It is possible that Gorsuch will become an advocate for the environment once he is on the highest bench and draw upon his love of the outdoors, but such radical transformations are rare in our Court’s history.
(2) He sided with enviros…once
Gorsuch appears to be a skeptic of the “dormant commerce clause,” which may have some positive implications for local and state environmental laws. The dormant commerce clause—so-called because it exists nowhere within the Constitution but can, supposedly, be inferred from the “Commerce Clause”—stands for the principle that a state is prohibited from passing legislation that improperly burdens or discriminates against interstate commerce. The dormant commerce clause has acted as an impediment against state environmental laws as they can impact interstate commerce.
In 2015, Gorsuch was on a three judge panel that upheld a Colorado law that required a certain percentage of power come from renewable sources. Coal producers challenged the law, as the law could diminish coal power and therefore coal producers.
(While Gorsuch’s position may be pro-environment here, its ideological roots—hostility to things not explicitly in the constitution—perhaps foreshadows his opinion on the “right to privacy,” found nowhere but in the “penumbras” of the Constitution. The right to privacy is the underpinning of federal judicial law protecting a woman’s right to choose, family planning, and other intimate areas of life.)