The Jurisprudence of Justice Gorsuch and Future Efforts to Address Climate Change
Introduction
Following the Trump administration’s significant reshaping of the federal judiciary and a number of blockbuster Supreme Court cases during the October 2021 and October 2022 Terms,
environmental law is shifting rapidly toward a more restrictive vision of federal regulation. Justice Gorsuch has been clamoring for such a revolution throughout his time on the bench. Since joining the Supreme Court, he has not only provided a crucial vote for limiting the Environmental Protection Agency (EPA)’s regulatory authority, but also advanced a radical vision of the separation of powers that would drastically alter our modern system of administrative governance. In several of his opinions, Justice Gorsuch has opposed federal regulations on quite expansive grounds, criticizing deference to agency expertise and questioning the constitutionality of delegation to administrative agencies.See Heather Elliot, Gorsuch v. The Administrative State, 70 Ala. L. Rev. 703, 707 (2019) (“Judge Gorsuch even gestured toward a belief that administrative agencies are themselves unconstitutional.”); see also Gundy v. United States, 139 S. Ct. 2116, 2137–43 (2019) (Gorsuch, J., concurring); West Virginia v. EPA, 142 S. Ct. 2587, 2617 (2022) (Gorsuch, J., concurring). He has also praised the slow trickle of congressional legislation, arguing that it is consistent with the Founders’ vision of a limited federal government.See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016); West Virginia, 142 S. Ct. at 2618 (Gorsuch, J., concurring).
Although Justice Gorsuch’s views on the administrative state are more extreme than those of most other Supreme Court Justices, his perspective appears to have influenced the Court’s shift to a “more formalist and less pro-agency direction.”Kristin E. Hickman, Response, The Roberts Court’s Structural Incrementalism, 136 Harv. L. Rev. F. 75, 78 (2022), https://harvardlawreview.org/forum/vol-136/roberts-courts-structural-incrementalism [perma.cc/PGX2-M6VL]; see also Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting). In Gundy, Chief Justice Roberts and Justice Thomas signed onto Justice Gorsuch’s dissent, which argued that the major questions doctrine had taken the place of the discredited nondelegation doctrine since “[w]hen one legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our constitutional system sometimes shift the responsibility to different doctrines.” Id. Compare West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (Roberts, C.J.) (stating that “both separation of powers principles and a practical understanding of legislative intent” provide grounds for invoking the major questions doctrine), with id. at 2617 (Gorsuch, J., concurring) (stating that the major questions doctrine operates “to protect the Constitution’s separation of powers”). This does not bode well for the federal government’s ability to undertake significant, swift regulatory actions to avoid serious environmental effects from climate change. The current Court’s hostility to federal regulations is particularly dire given congressional deadlock on climate legislation to create a carbon tax or cap-and-trade program. Republicans Help the US Reach Its Climate Targets?, Inside Climate News (Jan. 25, 2023), https://insideclimatenews.org/news/25012023/amid-rising-emissions-could-congressional-republicans-help-the-us-reach-its-climate-targets [perma.cc/LKG3-96ES]. While the Inflation Reduction Act and the EPA’s recent slate of greenhouse gas regulations will lead to less reliance on fossil fuels, the U.S. will need additional measures to meet its stated target of reducing greenhouse gas emissions to 50 percent below 2005 levels by 2030.Id.
If Congress is unlikely to pass another climate bill, and the EPA is doing all it can under the Clean Air Act, are we out of other options? This essay will argue that Justice Gorsuch’s jurisprudence suggests that state actions, whether through legislation or the common law, may be a viable pathway to address the climate crisis.
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