Jul 07, 2022
Last week the U.S. Supreme Court, in its latest rollback of precedent and law voted 6-3 to strip the EPA of its ability--under the Clean Air--to regulate greenhouse gas emissions from power plants during a global heat wave and expanding climate emergency.
While Chief Justice Roberts wrote the majority opinion, Justice Neil Gorsuch, the first of three Trump appointees, joined Samuel Alito in writing a concurring opinion, really a 19-page high-five endorsement of the gutting of an agency his mother once ran.
Just as Alito--who wrote the majority opinion ending the right to abortion--was known as the justice most committed to overturning Roe V. Wade, Gorsuch is known for his longstanding hostility to environmental law and regulation. As a New York Times editorial pointed out when he was first proposed as a nominee to replace the court's late and most rightwing jurist till that time, "He is even more conservative than Justice Scalia in at least one area--calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency."
One could argue that Judge Gorsuch's opinions regarding environmental laws may have as much to do with maternal trauma as conservative ideology.
Anne Gorsuch's brief, troubled tenure as EPA administrator had to have influenced the outlook of her then impressionable 16-year-old son, who had moved from Denver to D.C. with his mother before she caused the first major scandal of the Reagan administration.
Gorsuch's appointment was assured after she agreed with Reagan budget director David Stockman that the EPA could easily get along with a 50 percent funding cut. Before she came to Washington, Gorsuch, a Colorado state representative, was already a well-known foe of environmental enforcement, and she brought that worldview with her and her son to the capital. Her chief counsel at the EPA was a lawyer from Exxon, and her chief enforcement officer was a lawyer from General Motors.
In 1981, she met with executives from Thriftway Co., a small Southwest gasoline refiner, and told the company representatives that it didn't make sense to enforce EPA regulations on removing lead from gas, since unleaded gasoline rules were already in the works. After the meeting, she talked with a Senate aide who then caught up with the Thriftway reps and relayed the message that--though she couldn't tell them to break the law--she hoped they'd gotten the point.
In the fall of 1982, the House Energy Committee requested EPA documents on hazardous waste dumps and questionable Superfund Enforcement decisions. The White House ordered Gorsuch to withhold the documents under "executive privilege." Rita Lavelle, an EPA staffer who ran the hazardous waste program, took this as a sign to begin shredding scores of subpoenaed documents, including those on suspension of safety rules on waste disposal.
The congressional investigation would go on to find that the Superfund program under Gorsuch was being transformed into a costly lawyer-subsidy system; illegal private meetings with regulated companies were taking place; closed-door deals were being made to reduce fines on polluters; and government appointees were continuing to represent past clients who had ongoing conflicts with the agency. In the midst of this controversy, flooding in the Midwest spread dioxin contamination through the town of Times Beach, Missouri, leading to the emergency evacuation of more than 2,000 residents.
As media scrutiny intensified, Gorsuch was forced to resign, along with some 20 top appointees. Rita Lavelle eventually served six months in jail for perjury and obstruction of justice.
No doubt this harrowing family experience left a lasting mark on Neil. Interestingly one year after Anne Gorsuch resigned, the Supreme Court ruled in Chevron v. NRDC that federal agencies like the EPA should have broad latitude in deciding how to enforce federal law. The so-called Chevron deference became a cornerstone of administrative law underlying federal power.
Years later Neil Gorsuch, as a federal appellate court judge, expressed skepticism that the courts should defer to government agencies' interpretation of the laws they enforce instead embracing the conservative "major questions" doctrine suggesting Congress has to be very explicit in authorizing agencies how to address "major political and economic questions," such as the occupational health implications of Covid-19 or the air quality impacts of global warming.
Now he's gutted the ability of most expert agencies, particularly the EPA, to take any significant actions in response to evolving threats from polluters.
His mother would have been so proud.
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