The nomination of Neil Gorsuch to a seat on the Supreme Court brought to mind what happened 34 years ago, when his mother had to resign as EPA Administrator under President Reagan. This followed a scandal involving mismanagement of the agency’s Superfund toxic waste funds, and Anne Gorsuch’s refusal to honor a congressional subpoena for documents. Gorsuch widely known as the “Ice Queen.”
Much like Scott Pruitt would do today if approved as Trump’s nominee, Anne Gorsuch was also a lawyer who was happily cutting the EPA’s budget by 22 percent and rolling back clean air and water regulations. Then Hugh Kaufman blew the whistle, providing those documents to Congress and leaking them to the press, while Gorsuch’s staff put him under surveillance. The harassment tactics resulted in Kaufman’s obtaining a court order that precluded the EPA from firing him unless he did something illegal. So he’s been there ever since – at 74 still a policy analyst in the Solid Waste Emergency Response department, a living legend who remains the conscience of the Agency.
“I would say that the apple doesn’t fall very far from the tree,” Kaufman told me upon hearing of her son’s appointment. “I think he, like his mother, is intellectually brilliant and an out-of-the-mainstream conservative.” Mom wrote a 1986 memoir called Are You Tough Enough?, where she recalled her then 16-year-old son Neil telling her: “You only did what the President ordered. Why are you quitting?” (A chain smoker, she died of cancer at 62).
Neil Gorsuch might now have his revenge. He’s been an Appeals Court judge in Colorado and considered to be an ideological kinsman of the late Justice Antonin Scalia, who he’d be replacing. And Gorsuch is sure to be a staunch foe of one of the primary tenets of environmental law, known as the Chevron standard, which forces courts to defer to federal agencies when the regulators are enforcing laws that might otherwise be considered ambiguous. This standard was given force by the Supreme Court’s 1986 decision in Chevron v. NRDC and has provided the EPA under Obama a lot of leeway in controlling carbon dioxide pollution through using the Clean Air Act. But the Supreme Court will likely take up the fate of Obama’s Clean Power Plan in the near future, and Trump has already asserted that he’ll push to get rid of it. This is the very plan that the new EPA designee, Pruitt, has gotten 22 states to sign onto a lawsuit against. And it’s a bulwark in the U.S. effort to combat climate change.
Gorsuch doesn’t have too much history on environmental issues. But in an opinion on an immigration case, he claimed that the Chevron standard “certainly seems to have added prodigious new powers to an already titanic administrative state.” He called the standard an “abdication of judicial duty,” which he views as being to “interpet the law and declare invalid actions inconsistent with these interpretations.” In 2016, he wrote that the Chevron decision “seems more than a little difficult to square with the Constitution of the framers’ design.”
Earthjustice, an environmental litigation group, says that “a review of Gorsuch’s writings and decisions indicate that he would seek to overturn well-established Supreme Court precedents and prevent the federal government from enforcing bedrock environmental laws such as the Clean Air Act and Clean Water Act.” He also, according to the Center for American Progress, “wants to give unelected judges more power to strike down federal regulations that protect consumers and the environment.”
Bill McKibben, climate activist and founder of 350.org, said: “With Trump torching the Constitution and the climate, now isn’t the time to approve an extreme Supreme Court nominee. Gorsuch is a friend of fossil fuel companies and a foe of workers, the disabled, and the environment.”
On Wednesday, ExxonMobil CEO Rex Tillerson was confirmed by the Senate, 56 to 43, the most votes ever recorded against a nominee for Secretary of State. At the same time, Democratic members of the Senate Environment and Public Works committee boycotted a vote on Scott Pruitt’s selection to run the EPA. Under committee rules, at least two members of the minority party have must be present to constitute a quorum. The Republican chairman huffed this was a move to “intentionally delay and destruct” confirmation – even though the hypocrite Republicans did the same thing when Obama designated Gina McCarthy to run the EPA back in 2013. Now they’re saying that was different because Trump is a new leader who deserves to be able to fill out his administration. And the chairman, Wyoming Senator John Barasso, could still end up suspending the rules and sending Pruitt’s nomination to a full vote on the Senate floor.
But what happened with Tillerson and particularly Pruitt is a sign that the Democrats are showing some spine – and might be persuaded to get their backs up even higher to prevent Neil Gorsuch joining the Supreme Court. So let’s start making those calls again!