On Tuesday, January 31, President Trump nominated Tenth Circuit Judge Neil Gorsuch to replace Justice Antonin Scalia on the US Supreme Court. This advisory reviews several of Judge Gorsuch's opinions related to environmental and administrative law issues.

As discussed below, Judge Gorsuch is a strong believer that the executive branch should not be allowed to legislate through regulation. In one important concurrence, for example, Judge Gorsuch proposed the elimination of the so-called "Chevron" deference to administrative agencies. As an Associate Justice, it is reasonable to expect that Judge Gorsuch would seek to alter the US Supreme Court's current jurisprudence as it relates to agency deference. Notwithstanding this clear judicial philosophy, in several environmental opinions that Judge Gorsuch has penned, he has largely deferred to the relevant agency's actions.

In other environmental cases, Judge Gorsuch's opinions do not evidence a categorical "pro" or "anti" environmental leaning. For example, in an important dormant commerce clause case, Judge Gorsuch upheld Colorado's renewable energy mandate. On the other hand, Judge Gorsuch has shown some resistance to third-party intervention by non-governmental organizations into environmental litigation or related public policy disputes.

Judicial philosophy aside, it has been widely reported that Judge Gorsuch is an avid outdoorsperson.1 Indeed, Judge Gorsuch, began one recent opinion by remarking that "[e]veryone enjoys a trip to the mountains in the summertime."2 It is unclear how Judge Gorsuch's appreciation, on a personal level, for the outdoors would affect his approach to environmental cases on the Supreme Court.

Based upon the foregoing, as further discussed below, we expect that an Associate Justice Gorsuch would be inclined to roll back agency regulations that, in his judgment, represent an expansion of Congressional intent as articulated in the underlying legislation. On the other hand, Judge Gorsuch's writing and opinions to date generally suggest an even-handed, deliberate approach toward environmental law and the federal agencies charged with overseeing environmental issues.

Chevron Deference: A Skeptical View of Administrative Agencies

The most significant administrative law decision by Judge Gorsuch is the 2016 case Gutierrez-Brizuela v. Lynch,3 in which Judge Gorsuch authored a lengthy concurring opinion strongly critiquing the current status of administrative law jurisprudence.4

Opening with the premise that the current state of the law "permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design,"5 Judge Gorsuch challenged the Chevron doctrine6 as one that concentrates too much power in one branch of government.7 He posits the question, "what would happen in a world without Chevron?"8 His guess? Not much:

Surely Congress could and would continue to pass statutes for executive agencies to enforce. And just as surely agencies could and would continue to offer guidance on how they intend to enforce those statutes. The only difference would be that courts would then fulfill their duty to exercise their independent judgment about what the law is.9

Judge Gorsuch's concurrence in Gutierrez-Brizuela followed closely on the heels of an earlier 2016 opinion also lamenting the state of executive rulemaking, written in the context of Medicare Benefits. In this earlier case, Caring Hearts Personal Home Services, Inc. v. Burwell,10 Judge Gorsuch described the Centers for Medicare & Medicaid Services (CMS) as "struggling to keep up with the furious pace of its own rulemaking,"11 and wrote:

Executive agencies today are permitted not only to enforce legislation but to revise and reshape it through the exercise of so-called "delegated" legislative authority. [citing Chevron]. The number of formal rules these agencies have issued thanks to their delegated legislative authority has grown so exuberantly it's hard to keep up. The Code of Federal Regulations now clocks in at over 175,000 pages. And no one seems sure how many more hundreds of thousands (or maybe millions) of pages of less formal or "sub-regulatory" policy manuals, directives, and the like might be found floating around these days. For some, all this delegated legislative activity by the executive branch raises interesting questions about the separation of powers. For others, it raises troubling questions about due process and fair notice—questions like whether and how people can be fairly expected to keep pace with and conform their conduct to all this churning and changing "law."12

While Judge Gorsuch's Gutierrez-Brizuela concurrence and opening remarks in Caring Hearts clearly establish him as a proponent of reducing deference to government agencies as rulemakers, previous opinions indicate a more nuanced approach to the application of administrative law and respect for the role of the executive branch in implementing regulations.

For example, in United States v. Magnesium Corp. of America,13 which involves regulations governing the treatment of mined and processed magnesium wastes under the Resource Conservation and Recovery Act (RCRA), Judge Gorsuch authored a panel opinion upholding the US Environmental Protection Agency's (EPA) decision to require a magnesium processor to comply with RCRA regulations as interpreted by the agency, even where the agency interpretation conflicted with a prior (tentative) interpretation.

The facts of the case are as follows. Under the relevant RCRA regulations, hazardous waste is subject to more stringent requirements than nonhazardous waste. In 1989, EPA issued a final rule setting criteria for determining whether mine wastes would be considered hazardous. In 1990, EPA submitted a report to Congress in which it presented a study of the various wastes and recommended many for exemption, including the category of waste at issue in Magnesium—"[p]rocess wastewater from primary magnesium processing by the anhydrous process." In so doing, however, EPA repeatedly emphasized that its findings remained "tentative" and encouraged comments from the public for consideration before issuance of a final rule. EPA then issued a final rule in 1991, which definitively exempted such waste from the hazardous waste requirements, but did not explicitly define the scope of the "process wastewater." After arguing over the nature of the company's waste for a decade (i.e., whether it qualified for an exemption), EPA asserted RCRA violations against Magnesium Corp.

The sole issue on appeal was whether EPA was precluded from applying its current, plausible interpretation of its admittedly ambiguous 1991 regulation—interpreting it as providing no exemption for the waste at issue—despite its previous, inconsistent interpretation of that regulation in the 1990 report to Congress. The panel concluded that no such preclusion was warranted, holding in line with precedent that "an agency commits itself to a particular interpretation of its own regulation only when it adopts that interpretation definitively, and conditional or qualified statements, including statements that something 'may be' permitted, do not establish definitive and authoritative interpretations."14 EPA's overt classification of the 1990 Report as tentative and the fact that the agency sought further public comment on the wastes indicated to the court that EPA had not taken a definitive position in its 1990 interpretation.

Judge Gorsuch offered commentary on the practical implications of this decision on the regulated entities trying to determine how to comply with agency interpretations of their own regulations, first providing in a footnote:

One might reply to all this by suggesting that courts shouldn't recognize a distinction between an agency's tentative and definitive interpretations of its own regulations. After all, under Alaska Hunters,15 adopting a tentative interpretation seems like the best of all possible worlds for the agency: the agency can tell regulated parties what it wants them to do, and yet it's still free to embrace some new (assuredly tentative) interpretation whenever it wants. What's to motivate the agency, then, ever to make an interpretation definitive if it can just add "tentative" to its all proclamations as a magic word, a sort of abracadabra of administrative decisionmaking that frees it to change direction whenever it likes? Given these concerns, one might suggest that, rather than going too far, Alaska Hunters doesn't go far enough: not only should the revision of definitive interpretations require notice and comment, but the reversal of tentative interpretations should, too. Whatever the merits of this hypothesis, though, it is not one that U.S. Magnesium has asked us to consider.16

Judge Gorsuch noted that a challenge to a regulation as arbitrary and capricious under the Administrative Procedure Act (APA) remains a viable tactic, as does a due process challenge to any imposition of a penalty without fair notice.

While not providing as detailed of a discussion of administrative law, Scherer v. U.S. Forest Service17 sheds further light on how Judge Gorsuch might approach a case involving a challenge to administrative action that is arguably impermissible. In addressing a challenge to the US Forest Service's implementation of amenity fees for recreational visitors, Judge Gorsuch held that the fee was not facially invalid or beyond the scope of the Forest Service's statutory authority under the Recreation Enhancement Act (REA). The REA allows the Forest Service to charge fees for facilities that include certain amenities, including exhibits, security, and restrooms, but prohibits the Forest Service from charging fees to certain persons (hikers, boaters, picnickers) visiting the area who do not use such amenities. Judge Gorsuch found that plaintiffs, who sued on behalf of the public and sought to have all entrance fees to the Mt. Evans recreational area struck down, could not meet their burden of showing that the collection of fees was per se impermissible under the REA under any circumstance.18

Judge Gorsuch authored an opinion in the controversial and long-fought legal dispute over snowmobiling in Yellowstone National Park inWyoming v. U.S. Department of Interior, but his decision was based solely on procedural issues. 19 Writing for the panel, Judge Gorsuch dismissed the appeal as moot based on the National Park Service's implementation of intervening regulations during the course of litigation.  He declined to weigh in on the substantive issue of snowmobile access in the park, underscoring his stance against "judicial activism," by noting that "[a]s Chief Justice Roberts has succinctly put our point, 'if it is not necessary to decide more, it is necessary not to decide more.'"20

In Forest Guardians v. U.S. Fish and Wildlife Service,21 a three-judge panel, including Judge Gorsuch, addressed an APA challenge by an environmental group under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), which presented the issue of whether the US Fish and Wildlife Service's (FWS) decision via final rule after notice and comment to re-introduce an experimental population of captive-bred falcons (an endangered species) in an area with non-captive bred falcons, was arbitrary and capricious. The panel unanimously determined that FWS had reasonably interpreted the term "population" in the ESA because such interpretation did not conflict with the plain language of the statute and closely aligned with Tenth Circuit precedent. Additionally, the panel concluded that FWS had not violated NEPA by predetermining the result of its environmental analysis because it had not "irreversibly and irretrievably" committed itself to a plan of action dependent on a particular outcome of the environmental analysis. Thus, the panel upheld the agency's decision. Writing in a separate concurrence, Judge Gorsuch commented on the majority's determination that it could look outside of the environmental assessment document itself (to other documents in the administrative record) in determining whether an agency had predetermined the outcome of a NEPA analysis, but otherwise made no additional remarks about the merits of the ESA and NEPA issues before the court.

Renewable Energy and the Dormant Commerce Clause

While not an administrative law case, Energy and Environmental Legal Institute v. Epel,22 is of interest to those keeping an eye on renewable energy initiatives. EELI addressed the issue of whether Colorado's renewable energy mandate, which requires electricity generators to ensure that 20 percent of electricity sold to state consumers comes from renewable sources, improperly interfered with interstate commerce—a role delegated to Congress, not the states. An organization whose members include out-of-state coal producers argued that the mandate, which would affect the amount of fossil-fuel sourced electricity being fed into the regional grid (serving 11 states, Canada, and Mexico), was impermissible under a dormant commerce clause theory.

Judge Gorsuch, writing for the three-judge panel, disagreed, finding that the law was not a price control statute, did not involve tying the price of in-state products to out-of-state prices, and did not discriminate against out-of-state consumers or producers. In fact, the mandate, approved by Colorado voters, raised prices for in-state consumers, and there was no evidence of disproportionate harm to out-of-state businesses. Thus, no dormant commerce clause issues were at stake. The narrow legal issue in this case did not allow much room for commentary on the substance of the renewable energy mandate itself, but indicates that Judge Gorsuch was willing to side with states interested in promoting such mandates in the future, at least under analysis of commerce clause issues.

Litigation Involving Environmental NGOs

Judge Gorsuch also authored concurring and dissenting opinions in two cases involving challenges by environmental non-governmental organizations (NGOs) seeking to participate in lawsuits as plaintiffs and intervenors.

In New Mexico Off-Highway Vehicle Alliance v. U.S. Forest Service,23 Judge Gorsuch dissented from the majority on the three-judge panel, contending that environmental NGOs should not be allowed to intervene in a lawsuit filed by off-road vehicle enthusiasts who challenged the Forest Service's implementation of a plan limiting the number of roads and trails available to off-road motorized vehicles for recreational use. The majority found that the NGOs met the requirements for intervention as of right, noting that even though the Forest Service and NGOs sought the same remedy—to uphold the plan—the Forest Service could not adequately represent the interests of the NGOs because a federal agency cannot protect both the interests of the public and the interests of private groups. The majority noted that the NGOs' objections (although minor) to the Forest Service's actions in administrative proceedings suggested that the parties might differ as to litigation strategy and appropriate remedy were the Forest Service Plan to be enjoined.

Judge Gorsuch disagreed, writing that he believed intervention inappropriate because the interests of the NGOs were adequately represented by the Forest Service and speculation about a shift in the government's legal objective or other potential issues that may divide the parties was not sufficient to justify intervention. Were a split between the interests of the Forest Service and the NGOs to arise, he noted, a court could properly consider intervention at that time.

Judge Gorsuch also wrote a concurrence in Wilderness Society v. Kane County, Utah,24 a case dealing with the contentious and recurring issue of right of way access over federal lands. The facts are as follows. Kane County, Utah asserted a right of way over certain roads in the Grand Staircase Escalante National Monument pursuant to Revised Statute 2477 (R.S. 2477), which allows a party to obtain a "right of way for the construction of highways over public lands, not reserved for public uses."25 Those roads had been designated by the Bureau of Land Management (BLM) as off limits to vehicles such as ATVs and snowmobiles. After the County requested that BLM remove signs from their asserted rights of way without response from BLM, the County removed the signs themselves, put up its own signs authorizing off-road vehicle use, and passed ordinances allowing off-road vehicle use.

Environmental NGOs then asserted a number of legal arguments against the county,26 all premised on the Supremacy Clause. The district court enjoined the County from any action opening routes over federal land for public use and held that the County was required to establish the validity of its right of way before taking actions in furtherance of the ordinances. On rehearing en banc of the County's appeal, the Tenth Circuit held that the NGOs lacked prudential standing, which a plaintiff must show to bring a claim in federal court.27 The majority found that the NGOs were not proper plaintiffs based on prudential standing grounds because they were suing to enforce the federal government's property rights rather than their own, and instructed the district court to dismiss the case.

Judge Gorsuch wrote separately to say that he would dismiss the case on mootness grounds—the County had repealed the ordinances at issue and removed signage authorizing off-road use. He also found that plaintiffs lacked redressability under the Supremacy Clause for the remaining claims, which dealt with whether the County could install road numbering signs on its claimed rights of way. Judge Gorsuch declined to weigh on the prudential standing analysis and ultimately declined to provide any substantive commentary about the merits of the case, though he did comment on the fact that they were intriguing:

Fact is, federal law doesn't always point harmoniously in a single direction—and when it comes to land policy this is perhaps particularly true. Enacted in the nineteenth century, R.S. 2477 sought to promote development by allowing all comers to establish rights of way through federal property without any procedural formality, but by simply asserting and using them. In contrast, contemporary federal land use statutes and regulations like BLM's give comparatively more attention to conservation. Trying to reconcile these two competing strands of federal law presents many sticky questions: Are BLM regulations purporting to regulate rights of way Congress granted in R.S. 2477 consistent with and reasonable interpretations of the FLPMA? If they are, to what extent do they allow BLM to limit the use of rights of way granted by R.S. 2477? Does an R.S. 2477 right of way holder have to prove its existing rights before exercising those rights in a federally regulated monument or park? Or may the holder use its right of way without pursuing any procedural formality? All of these are intriguing questions about which federal legal entitlement must give way, and to what extent.28


He offered no hint, however, as to how he would have answered such questions.29

Conclusion

As discussed above, an Associate Justice Gorsuch would undoubtedly seek to curtail judicial deference to agency rulemaking. This point alone could have a large impact on environmental law going forward. Nonetheless, Judge Gorsuch's decisions and writings indicate, at least under current precedent, a fairly balanced view of agency decisionmaking. With regard to lawsuits by environmental non-governmental organizations, Judge Gorsuch is fairly rigorous in imposing judicial constraints on such actions. Finally, with regard to environmental issues generally, Judge Gorsuch's opinions to date do not evidence a strong categorical predisposition in opposition or in favor of environmental regulations.  

*Laura Cottingham contributed to this article. She is a Tulane University Law School graduate employed at Arnold & Porter Kaye Scholer LLP and is not admitted to the bar in the District of Columbia; she is admitted only in Colorado.

  1. See  Neil Gorsuch naturally equipped for his spot on Trump's Supreme Court shortlist (noting that Gorsuch is a fly-fisherman, rower, and skier).
  2. Scherer v. U.S. Forest Serv., 653 F.3d 1241, 1242 (10th Cir. 2011).

  3. 834 F.3d 1142 (10th Cir. 2016).

  4. Judge Gorsuch also authored the majority opinion, which addressed a relatively complex procedural, administrative, and judicial history. The issue ultimately before the court was whether the Board of Immigration Appeals' interpretation of ambiguous statutory language, which directly conflicted with Tenth Circuit interpretations of such language, could apply retroactively. In short, the court remanded the matter to the Board of Immigration Appeals after holding that "a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms." Id. at 1145 (citing De Niz Robles v. Lynch, 803 F.3d 1165, 1172 (10th Cir. 2015)).
  5. Id. at 1149.

  6. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

  7. See id. at 1155 ("Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive).").
  8. Id. at 1158.
  9. Id.
  10. 824 F.3d 968 (10th Cir. 2016).
  11. Id. at 970.
  12. Id. at 969. Regarding the merits of the case, Judge Gorsuch vacated a district court judgment denying Medicare coverage for services provided by Caring Hearts to 22 individuals, finding that CMS had relied on the incorrect version of its regulations when determining that it would not cover the services provided by Caring Hearts. He concluded that CMS had to rely on a later (and more stringent) version of the applicable regulations than those in place at the time that Caring Hearts provided such services, and that "an agency decision that loses track of its own controlling regulations and applies the wrong rules in order to penalize private citizens can never stand." Id. at 977.
  13. 616 F.3d 1129 (10th Cir. 2010).
  14. Id. at 1141 (citation and internal quotation marks omitted).
  15. In Alaska Prof'l Hunters Ass'n Inc. v. Federal Aviation Administration, 177 F.3d 1030 (D.C. Cir. 1999), the D.C. Circuit ruled that although the Administrative Procedure Act explicitly permits agencies to issue interpretive rules without notice and comment, agencies cannot change or abandon a definitive interpretation  of such rules without notice and comment.
  16. Magnesium Corp., 616 F.3d at 1143, n. 16.

    Judge Gorsuch went on to offer the following assurance about how to grapple with the legal implications of conflicting agency interpretations:

    one might worry that administrative law has simply abandoned regulated parties to the whims of an agency's arbitrary interpretive reversals. What about the reasonable and settled expectations of the regulated public? As it happens, however, there is no reason for undue alarm.[[N:Id. at 1143.

  17. 653 F.3d 1241 (10th Cir. 2011).
  18. However, Judge Gorsuch noted that a different lawsuit with a more tailored question as to whether the fee was invalid as applied to a particular visitor might yield a different result. Thus, in siding with the Forest Service, Judge Gorsuch indicated that its actions were within the permissible scope of the REA generally, but explicitly advised that a proper plaintiff asserting the appropriate legal theory might succeed in challenging the fee.
  19. 587 F.3d 1245 (10th Cir. 2009). Note that Robert Rosenbaum, a retired Arnold & Porter Kaye Scholer litigation partner, appeared in this case on behalf of Intervenor–Appellant National Parks Conservation Association. Holly Sterrett, Senior Attorney, and Ingo Sprie, Jr., Partner, appeared alongside him on the appellate briefs.
  20. Id. at 1252 (citing PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)).
  21. 611 F.3d 692 (10th Cir. 2010).
  22. 793 F.3d 1169 (10th Cir. 2015).
  23. 540 F. App'x 877 (10th Cir. 2013).
  24. 632 F.3d 1162 (10th Cir. 2011).
  25. Id. at 1165.
  26. Among them were arguments that the county's actions violated the Federal Land Policy and Management Act, the Wilderness Act, the National Park Service Organic Act, and various regulations and agency decisions implementing the statutes.
  27. As the majority explained, prudential standing embodies "judicially self-imposed limits on the exercise of federal jurisdiction....(and) encompasses various limitations, including the general prohibition on a litigant's raising another person's legal rights. (T)he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kane Cty., 632 F.3d at 1168 (internal citations and quotation marks omitted).
  28. Id. at 1178. Note that the dissent in Kane County criticized the majority for dismissing the case on prudential standing grounds and for refusing to discuss the remaining four legal issues the parties had briefed and argued, arguing that that the majority "utilize(d) extreme means to nullify the trial court's injunction prohibiting Kane County from substituting its own policies for a duly enacted federal management plan on federal public lands." Id. at 1180.
  29. Another noteworthy case involving an environmental NGO, in which Judge Gorsuch voted with the majority but did not author the opinion, is S. Utah Wilderness All. v. Office of Surface Mining Reclamation & Enf't, 620 F.3d 1227 (10th Cir. 2010). In that case, an NGO challenged BLM's suspension of a coal mining company's lease and tolling of the statutory "diligent development" period, thereby extending the time in which the company could begin coal production. The majority found that language in an administrative Order issued by BLM in 2002 was ambiguous as to the meaning of "final court decision," which referred to the NGO's earlier administrative appeal challenging the company's state mining permit. The majority held that the phrase was ambiguous as to what event would trigger the end of the suspension, and deferred to BLM's interpretation that it "intended the suspension to last until (the mining company) had obtained the required permits and successfully fought off any court challenges to the agency decision." The dissenting judge on the panel did not find the language ambiguous and found that the phrase clearly meant that the suspension period lasted only as long as the relevant judicial proceedings lasted, not throughout the entire time in which the permitting process could be challenged. In other words, the majority decision found that the company's mining lease remained valid; the dissent found that it did not. On one hand, this case is another example of Judge Gorsuch affording an agency deference to its interpretations. On the other, it presents an instance where an NGO failed to sway Judge Gorsuch on the merits of the case.

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