Guest essay by Eric Worrall
At least one green is worried that Judge Neil Gorsuch, a potential replacement for Supreme Court Judge Antonin Scalia, who died in 2016, thinks courts should sometimes be able to rule against the advice of government experts.
Counterpoint: Gorsuch Could Make It Harder to Address Climate Change
Posted to Politics February 18, 2017 by Billy Corriher
Editor’s Note: For an alternative viewpoint, please see: Point: Neil Gorsuch Should be Confirmed to the Supreme Court
Judge Neil Gorsuch was not on President Donald Trump’s first list of potential Supreme Court nominees. Judge Gorsuch did, however, appear on a revised list just weeks after he wrote a controversial manifesto arguing that it should be easier for corporations and individuals suing federal agencies to have courts strike down regulations and overrule decisions by experts at agencies like the Environmental Protection Agency.
Anyone concerned about the health of our environment should oppose Judge Gorsuch’s nomination. If Judge Gorsuch is confirmed, his approach to reviewing regulations suggests that he could vote to limit the EPA’s ability to address climate change. And with the pace of climate change now reaching devastating levels, the planet simply cannot afford another justice who would rule for fossil fuel companies and against the EPA.
At the heart of Judge Gorsuch’s August 2016 manifesto is the Supreme Court’s 1984 decision in a case known as Chevron v. NRDC. In Chevron, the Supreme Court ruled that if a federal law is unclear or vague, the courts should not overrule the interpretation by the agency experts that implement the law, unless the agencies clearly got it wrong.
The court’s Chevron ruling was a common-sense approach to judging voluminous, complicated regulations. In practice, this approach means that when the Clean Air Act is unclear, the scientists who decide what level of air pollution could harm human health should get the benefit of the doubt. In other words, judges — whose expertise is in the law, not environmental science or public health — should let agency experts fill in the blanks.
Judge Gorsuch, however, believes that judges like himself should have more power to overrule scientists and policy experts — making it much harder for those who draft regulations to do their jobs. Furthermore, if courts move away from Chevron, some judges might feel pressure to become experts on a range of technical topics, such as air quality regulations, banking fraud and patents. This is an impossible standard for any judge to meet.
To their credit Inside Sources have also published an alternative viewpoint, an endorsement of Judge Gorsuch.
I like this judge. In my opinion, excessive deference to government experts is a big part of the reason why climate policy is so messed up. Government experts are human like the rest of us, and as subject to sloppy thinking, incompetence, and just being plain wrong as anyone else. When it comes to a court of law, government representatives should be subject to the same scrutiny as any other party.