Neil Gorsuch has a grudge against federal agencies. He holds their fate in his hands

By CNN Newsource

Published January 17, 2024 2:00 AM

By Joan Biskupic, CNN Senior Supreme Court Analyst

(CNN) — Anne Gorsuch, a former chief of the Environmental Protection Agency, cut a flamboyant, defiant figure in early 1980s Washington as she slashed air and water quality regulations.

She fought with environmentalists, was held in contempt by Congress and eventually resigned under pressure from the Ronald Reagan White House that had championed her. Her memoir was, appropriately, entitled: “Are You Tough Enough?”

Her son Neil Gorsuch, a Supreme Court justice since 2017, has shown his own brand of defiance and anti-regulatory fervor.

In recent years, Justice Gorsuch has voted against regulations that protect the environment, student-debt forgiveness and Covid-19 precautions. During a Covid-19 spike in early 2022, Gorsuch was the lone justice who declined to wear a mask while sitting on the bench.

He has led calls on the court for reversal of a 1984 Supreme Court decision that gives federal agencies considerable regulatory latitude and that, coincidentally traces to his mother’s tenure. The Supreme Court will hear a pair of cases on Wednesday testing that 40-year-old case known as Chevron USA, Inc. v. Natural Resources Defense Council, which has become the touchstone for resolving conflicts over agency power.

The issue comes down to Congress’ ability to write open-ended laws that delegate policy details to agency officials. The Chevron principle dictates that when disputes arise over regulation of an ambiguous law, judges should defer to agency interpretations of the law if the interpretations are reasonable.

The Chevron case has steered disputes over countless directives intended to protect the public, such as from air pollution, workplace hazards, risky drugs and medical fraud, or to guarantee certain benefits, such as people with disabilities and elderly.

The Chevron ruling grew out of challenges to EPA policy regarding “stationary sources” of air pollution (such as factories and power plants) under then-administrator Anne Gorsuch. The new cases test a National Marine Fisheries Service mandate that the fishing vessels pay the cost of certain onboard observers who monitor catches.

Business groups and conservative activists – including a network founded by Charles Koch helping to finance the challenge – say “Chevron deference” has led to an uncontrolled bureaucracy. The federal government, backed by public health, labor and environmental advocates, stresses the importance of agency expertise, such as in scientific and medical fields, and the value of uniform, nationwide rules.

Such conflicts have gotten hotter since the Supreme Court conservative supermajority coalesced in 2020 and demonstrated a desire to curtail agency power across the board. The Trump administration specifically sought judicial candidates like Gorsuch who have railed against the so-called “administrative state.”

The anti-regulatory forces in Wednesday’s litigation have laced their briefs with phrases from the justice.

“After 40 years of confusing experimentation and disastrous consequences,” write lawyers for one of the commercial fisheries at the center of the new case, “it is time to give the profoundly wrong Chevron doctrine ‘a tombstone no one can miss.’”

Gorsuch invoked that tombstone motif in a 2022 dissenting statement when fellow justices declined to hear an earlier challenge to the Chevron doctrine. “Rather than say what the law is, we tell those who come before us to go ask a bureaucrat,” Gorsuch wrote. “We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.”

The federal government has repeatedly emphasized the importance of agency authority for the public good, whether in environmental protection, worker safety or consumer safeguards.

“Overruling Chevron would be a convulsive shock to the legal system,” US Solicitor General Elizabeth Prelogar, who will defend the 1984 precedent on Wednesday, told the justices in a filing. “All three Branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions.”

Neil Gorsuch was unhappy his mother quit EPA

Anne Gorsuch, the first woman to lead the EPA, served from 1981 to 1983. Appointed by then-President Ronald Reagan, she was part of that administration’s massive deregulation agenda that swept across industries from airlines to manufacturing to telecommunications.

Hers was a rocky tenure. She clashed with congressional investigators who challenged her cuts to air-quality programs and overall management of the agency intended to protect the environment.

In one of her most defining battles, Gorsuch was held in contempt of Congress in December 1982 after she refused to turn over documents related to a hazardous-waste cleanup fund.

Administration lawyers had advised her to withhold the documents based on executive privilege, and she later criticized those lawyers – whom she called “the unholy trinity” in her memoir – for misusing her for their own agendas. Pressure mounted all around, and by March 1983 the White House forced her to resign. (In the middle of the ordeal, in February, the divorced Gorsuch married Robert Burford, then-director of the Bureau of Land Management; she became known as Anne Burford.)

In her 1986 memoir, she wrote that son Neil, then age 15, was distressed by her situation.

“You should never have resigned,” she recounted him telling her. “You didn’t do anything wrong. You only did what the President ordered. Why are you quitting? You raised me not to be a quitter. Why are you a quitter?” She added, “He was really upset.”

Justice Gorsuch declined requests from CNN to talk about his mother’s work.

In one of his own books, he referred to the fact that she was the first female EPA administrator but elaborated only on her earlier record in Colorado, including as a young lawyer and state legislator. He described her as “a feminist before feminism” and added, “Her idea of daycare often meant me tagging along.”

Chevron was a unanimous ruling

The late Justice John Paul Stevens, author of the 1984 Chevron decision, observed in a 2019 book that the opinion became one of the most cited in court history, mushrooming in importance over the years.

That point is backed up by Columbia University law professor Thomas Merrill, an expert in administrative law, who has referred to it as “an accidental landmark,” the “leading statement about the division of authority between agencies and courts in interpreting statutes.”

The core dilemma of the case turned on EPA’s 1981 interpretation of “stationary sources” for anti-pollution permitting purposes. Congress had not precisely defined the phrase in the Clean Air Act, and environmental advocates contended the administration’s view fell short of statutory protections.

But Stevens, in a unanimous opinion, wrote that when a statute is ambiguous, judges should uphold an agency’s interpretation as long as it is reasonable and based on a permissible reading of the law.

Chevron was a rare six-justice decision. Three of the nine justices at the time did not participate because of health reasons or conflict of interest.

Merrill has written that although the impact was not immediately clear, it led over the years to expansive deference to agencies and “seemed to offer a universal reason to prefer agency interpretations to judicial ones.”

For Wednesday’s dispute, Merrill submitted a “friend of the court” brief, formally backing neither side of the case but urging the justices to uphold the Chevron doctrine with limits that lower court judges have sometimes omitted.

He suggested the high court clarify that judges determine, in any given case, that Congress has actually delegated authority to the agency to regulate with respect to the matter at hand and that an agency interpretation flows from an “appropriate interpretive process.”

Conservative activists using fishing regulations to push the issue

The paired cases the justices will hear on Wednesday arise from federal monitoring requirements to prevent overfishing and to rebuild stocks for the long-term health of the fishery industry. In dispute is a regulation of the National Marine Fisheries Service that requires vessels to undergo regular monitoring and, when third-party observers are used, to pay the costs.

Two Atlantic herring fisheries, Loper Bright Enterprises and Relentless, Inc., claim the agency lacked authority to force vessel owners to pay for third-party monitoring services. They lost in lower courts, as judges said a federal law, the Magnuson-Stevens Conservation and Management Act, gives the federal government the power to require vessels to carry at-sea monitors and to bear the costs.

In their appeal, the fisheries are backed by an array of wealthy businesses interests that have long tried to topple Chevron, including the network founded by Koch. The lawyers who will argue on behalf of the challengers are seasoned appellate advocates who once served as Supreme Court law clerks, as did Solicitor General Prelogar.

Lawyer Roman Martinez, representing Relentless and up first at the court lectern on Wednesday, told the justices in his written filing that the Chevron approach usurps the judiciary’s responsibility to decide the meaning of statutes.

“Acquiescence is mandatory so long as the agency’s interpretation falls within an ill-defined zone of reasonableness – even if the judge believes the agency’s interpretation is wrong,” Martinez wrote. “Chevron thereby forces judges to abdicate their most important duty: to faithfully apply the law.”

Paul Clement, representing Loper Bright Enterprises, highlighted the recent Supreme Court pattern of disregarding the Chevron approach and reining in agencies.

“Thus, the question is less whether this Court should overrule Chevron, and more whether it should let lower courts and citizens in on the news,” Clement wrote. “The reality is that Chevron has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough.”

Prelogar, who will argue for the Biden administration in both cases, asserts that the Chevron precedent rightly puts authority for crucial policy in the hands of regulators who would know best how to protect the public interest. “Chevron gives appropriate weight to the expertise, often of a scientific or technical nature, that federal agencies can bring to bear in interpreting federal statutes,” she wrote.

That argument has prevailed in courts for decades, but the Supreme Court has signaled that it is ready for a new era.

The prospect appears likely because of Gorsuch and the other Trump appointees who have greatly tipped the ideological balance of the court.

Former White House counsel Don McGahn, who oversaw the selection of Trump nominees, often remarked that he was drawn to Gorsuch because of his anti-regulatory bent.

And Gorsuch’s family history was not lost on him. (Anne Gorsuch Burford died in 2004.) As McGahn explained his own antipathy toward federal regulators, he quipped to a law school audience in 2020, “Unlike Justice Gorsuch, my mother was not head of the EPA. Still,” he added, “I’ve always had an aversion to concentrated power.”

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