Gorsuch's environment record not easy to define

Many conservation groups say President Donald Trump's Supreme Court nominee is too conservative and too much like the late Justice Antonin Scalia to be considered a friend of the environment




By the time a lawsuit over pollution from a nuclear weapons plant had reached Judge Neil Gorsuch, it had crawled through the courts for more than two decades, outliving some of the landowners who said the contamination destroyed their property values.

That pace didn’t sit well with Gorsuch, a judge for the Denver-based 10th U.S. Circuit Court of Appeals, and now President Donald Trump’s nominee for the U.S. Supreme Court.

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

Many conservation groups say 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 his record on issues like pollution and environmental regulations, he can’t be painted as someone who always finds in favor of businesses, according to an Associated Press review of his rulings.

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 the company’s mining operation in Utah. The company argued the EPA couldn’t change the rule without public notice and comment. It said the byproducts were exempted under a previous interpretation, but Gorsuch said that interpretation was “at best” tentative, so the agency was free to change its mind and issue a new one.

In 2015, he voted to uphold a Colorado law that requires 20 percent of electricity sold to consumers in the state to come from renewable sources. The law was challenged as a threat to out-of-state coal companies under a federal provision known as the dormant commerce clause, which is related to interstate commerce.

Gorsuch conceded the law would hurt some energy producers. “But as far as we know, all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally. If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court,” Gorsuch wrote.

He has ruled against the EPA, too, as in a 2010 case in which he wrote for a majority of the court that the agency was wrong to classify a company’s land in New Mexico as Indian country when the company sought to obtain a permit for mining. If the land, which was not on a reservation, was classified as Indian country, the company would have needed to obtain a permit from the EPA rather than the state.

More broadly, Patrick Gallagher, 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.

Pat Parenteau, a professor at Vermont Law School, said he wouldn’t call Gorsuch a staunch ally of business, “but I think he’s certainly going to require the government to justify the costs of what they are imposing” through regulations.

Parenteau said Gorsuch might frustrate those on either side of an issue, depending on the case, and noted that the judge is a fly fisherman, a hobby that often comes with a keen awareness of the importance of a healthy environment.

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 nonprofit 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.”

As for the long-running class action lawsuit over nuclear waste at the Rocky Flats plant, the case is notable for its duration, and as Gorsuch observed, a legal twist that “put the defendants in a pickle.”

The lawsuit was filed in 1990 by people who lived near the plant northwest of Denver, which had produced triggers for nuclear weapons during the Cold War. 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 that polluted the ground and water.

Property values crashed, and nearby landowners sued.

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

The issue was whether the pollution should have been considered a “nuclear incident” covered by the federal law, which the companies’ lawyers argued it should not. An appeals court panel vacated the award.

“But that’s when things took an interesting turn,” Gorsuch wrote in 2015. “Trying their hand at a little judicial jiu-jitsu, the plaintiffs sought to turn the defendants’ victory against them.”

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

Gorsuch and the three-judge panel agreed and sent the case back to the trial court.

Writing for the panel, Gorsuch lamented the “staggering delay and (no doubt) equally staggering expense the parties endured” from the long-lasting litigation.

“Injustice not only in the needless financial expense and the waste of judicial resources, but injustice in the human costs associated with trying to piece together faded memories and long since filed away evidence, the emotional ordeal parties and witnesses must endure in any retrial, the waste of the work already performed by a diligent and properly instructed jury, and the waiting — the waiting everyone would have to endure for a final result in a case where everyone’s already waited too long,” Gorsuch wrote.

Merrill Davidoff, the landowners’ attorney, said Gorsuch was a “well-prepared and brilliant judge” who helped move the case toward a conclusion.

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

An attorney for the companies did not respond to messages.

The plant contractors settled last year for $375 million, to be split among thousands of property owners. Under provisions in their contracts, the companies have been reimbursed by the Department of Energy. A public hearing is scheduled for April 28 about distribution of the funds to homeowners.

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

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

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