Gorsuch’s environmental record not easy to define

Many conservation groups say U.S. Supreme Court nominee Neil Gorsuch is too conservative and too much like the man he would replace, the late Justice Antonin Scalia, to be considered a friend of the environment.

But when it comes to Gorsuch’s judicial record on issues like pollution and environmental regulation, he can’t be painted as someone who always finds in favour of businesses, according to an Associated Press review of his rulings.

“I’m willing to, for now, stipulate, as we like to say, that he’s going to come at these things neutral and if he doesn’t think an agency’s interpretation is credible he’s going to say so,” said Pat Parenteau, a professor at Vermont Law School. “Sometimes that’s going to cut in favour of the environment and sometimes it’s going to cut against the environment and I don’t know how much of that concern actually weighs into his decision making.”

As a judge for the Denver-based 10th U.S. Circuit Court of Appeals, Gorsuch has ruled both for and against causes that environmentalists hold dear.

He voted in 2015 to uphold a Colorado law that requires 20 per cent of electricity sold to consumers in the state come from renewable sources.

In 2010, Gorsuch sided with the Environmental Protection Agency when a magnesium company challenged the EPA’s new interpretation of a rule regulating byproducts created by mining in Utah. The company said the byproducts were exempt under a previous interpretation, but Gorsuch said that interpretation was “at best” tentative, so the agency was free to issue a new one.

But Gorsuch has also ruled against the EPA, as in a 2010 case in which the court found that the agency was wrong to classify land in New Mexico as Indian country when a company sought to obtain a mining permit. If the land, which was not on a reservation, were classified as Indian country, the company would have needed to obtain a permit from the EPA rather than the state.

In another case, which reached his court in 2015, he showed frustration at the pace of an environmental case.

The lawsuit was filed in 1990 by landowners near the federally owned Rocky Flats nuclear weapons plant northwest of Denver. The plant was originally operated under a government contract by Dow Chemical Company and later Rockwell International Corporation.

Federal authorities raided the facility in 1989, finding years of haphazard handling of plutonium waste in the manufacture of triggers for atomic bombs.

Property values crashed, and nearby landowners sued.

Gorsuch wrote that after the “titanic fifteen years” it took to reach a trial, the landowners had won more than $900 million in damages and interest based on a federal law, a verdict that was thrown out on appeal.

The landowners then argued that once the federal law was out of consideration, the companies were liable under Colorado state law.

“This long lingering litigation deserves to find resolution soon,” Gorsuch wrote for his panel that sent the case back to a lower court to be handled “promptly” in favour of the landowners.

The plant contractors settled for $375 million, to be split among thousands of property owners.

“He follows the law,” said Merrill Davidoff, the landowners’ attorney. “And in this case the law favoured the plaintiffs — the landowners — not the government or the government contractors.”

An attorney for the companies did not respond to messages.

Patrick Gallagher, the legal director of the Sierra Club, said Gorsuch would try to limit conservation groups’ access to the courts, which the judge has shown a willingness to do when organizations have sought to be heard in some cases involving the use of public lands.

“His limited record, and I have to stress it is very limited, supports our position that he would limit access to the courts,” Gallagher said.

A ruling that most worries some environmental groups came in a case that had nothing to do with the environment. In a much-noted immigration case, Gorsuch was critical of the longstanding Chevron doctrine, which gives deference to federal agencies’ interpretations of ambiguous statutes. Conservationists say that could be trouble for agencies like the EPA, which have the task of interpreting and implementing rules.

“If you look back at the Supreme Court’s rulings involving Chevron, most of those are environmental cases,” said Billy Corriher, deputy director of legal progress at The Center for American Progress, a non-profit liberal advocacy group. “And I think that’s because the EPA really enforces a lot of statutes that are pretty broad, it gives them broad authority to regulate certain pollution and it leaves it up to the experts to determine exactly what threshold of pollution is acceptable and what threshold is dangerous. Judge Gorsuch would want to get rid of that standard and basically allow judges to substitute their own judgment for the judgment of the agency experts.”

___

Find AP’s reporting on Neil Gorsuch here: http://apne.ws/2mfXk4V

___

The AP National Investigative Team can be reached at investigate@ap.org

EDITOR’S NOTE _ One in a series of stories examining the judicial record of Neil Gorsuch, nominated to the Supreme Court by President Donald Trump