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.
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Read more: http://www.insidesources.com/counterpoint-gorsuch-climate-change/
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.
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Judges should have the power to say prove it beyond all reasonable doubt or yes the experts not only can be ignored but should be ignored. Beyond all reasonable doubt should mean the experts must be able to show they have previously had to prove their case to an external body of experts from fields like statistical analysis and engineering to show the data is of good quality throughout and has not been adjusted in the direction of the case claimed to any detectable degree.
After all we are being heavily fined for crimes against the climate so we should have the right to a FAIR trial.
The legal problem is not with EPA or the Courts, but Congress.
The Clean Air Act delegates authority to the Administrator to declare any substance a pollutant, presumably Chanel No.5 if the Administrator doesn’t like it.
The SCOTUS failed by focusing on the text that delegates discretion over designating a pollutant and ignoring the explicit purpose of the Act.
The purpose of the Act is to protect public health and welfare. The SCOTUS should have considered evidence that the designation of CO2 as a pollutant will contribute to protecting the health and WELFARE of the AMERICAN public. The former Administrator is on record as having stated before a Congressional Committee that the purpose of the regulations to control CO2 was in support of foreign policy, to mainain US leadership in controlling global climate. She could not tell the Committee by what amount the regulations would reduce the rate of global warming.
I can’t remember which SC justice (SCJ Alito? Scalia?) who asking in oral questioning to what extent is EPA bound to consider the economic and financial impacts of its regulations.
That was a start. But the matter must be resolved by an amendment to the Clean Air Act to the effect that for a substance to be defined as a pollutant itv must be toxic to humans in the concentrations measured within the US and its territorial waters.
CO2 should be specifically excluded from the list of pollutants. Submariners breathe it at concentrations 10 to 20 times higher than its concnetration in the atmosphere, 400 parts per million.
If Congress decides that some agency should control the climate, or the phases of the moon, or the number of sunspots, the new agency could pass regulations and the Scotus will have to allow them, as long as the Congress omits any statement of purpose that the regulations fail to fulfill.
There is much debate about what an “originalist” justice stands for, but I have not heard much discussion of ordinary rules of statutory interpretation in the context of originalism. As I understand it, the text of a statutory provision should be interpreted in the context of the entire statute. Often, justices have to infer purpose from the context alone.
But with the Clean Air Act the justices do not have to go to the trouble of inferring purpose, because Congress clearly defined the purpose of the Act, and it was not to control global climate.
I come late to this discussion but as a veteran (on the receiving end) of multiple agency rulemakings, I would recommend everyone scroll back to the top and read Quinn the Eskimo’s comments. He absolutely has the process described down to the last, cynical and agency-serving comma.
The appropriate judicial remedy is not for the courts to become experts in scientific questions, but to identify and throw out lazy lawmaking when they find it: Overturn vague law and if Congress really. really wants to, it can write something everyone can understand. The alternative is what we’ve had for a couple of generations, i.e., government by pandering press release, and we’ve seen how that works.
If congress writes vague laws, the solution is to go back to congress and get them to write better laws.
The solution is not to declare that whatever the agency decides to do must be OK.
In the past there was a legal principle that vague laws were invalid laws.
It is annoying when an article talks about what someone (Gorsuch) implied or meant without quoting or pointing to what he actually said, or even naming the case where he said it.
There are enough clues to find the case, and the case text. (Commenter Alan Watt kindly supplied one link.) The case is
Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 – Court of Appeals, 10th Circuit 2016
This is an immigration case. The main decision is a highly technical determination of which of conflicting laws and decisions apply to which instances. Gorsuch’s additional remarks suggest that the “Chevron” and “Brand X” decisions may have given agencies de facto legislative power inappropriately.
This case does not indicate how Gorsuch regards supposed expertise, scientific or otherwise. These words occur nowhere in the text: expert, expertise, science, scientific, scientist, technical.
“…excessive deference to government experts is a big part of the reason why climate policy is so messed up.”
Hmmm… so now we have changed the government experts and he could rule against them, i.e. rule against defunding climate change! Wouldn’t that be sweet!
Experts?
Groundnuts!
https://en.wikipedia.org/wiki/Tanganyika_groundnut_scheme