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Commentary: How Gorsuch’s views could sway climate policy

By: Commentary: , NOAH FELDMAN, Bloomberg View//March 31, 2017

Commentary: How Gorsuch’s views could sway climate policy

By: Commentary: , NOAH FELDMAN, Bloomberg View//March 31, 2017//

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The keystone of President Donald Trump’s executive order on the environment, signed Tuesday, is a directive to the Environmental Protection Agency to review and rescind the Obama administration’s Clean Power Plan, which aimed to shift the country’s electricity generation from coal-fired plants to sources that emit less carbon. When the EPA acts, that will trigger a legal fight about whether the Trump plan complies with the Clean Air Act. And that fight will almost certainly involve the doctrine of Chevron deference, Neil Gorsuch’s special target of judicial dislike.

If Gorsuch is confirmed to the Supreme Court, this could become his first opportunity to comment on Chevron, which provides that the courts defer to agencies when interpreting vague laws. And the case will highlight how that doctrine is, in general, highly useful to the party that controls the presidency.

Enacted as a final order by the EPA in 2015, the Clean Power Plan has been under legal challenge since. In a highly unusual move, the Supreme Court stayed its operation until it could undergo judicial review. As a result, the plan hasn’t been implemented.

The U.S. Court of Appeals for the D.C. Circuit heard a challenge to the plan in September. It hasn’t yet ruled — and now it probably won’t issue a judgment until after the Trump administration’s review.

Assume that Trump’s EPA pulls the Clean Power Plan altogether, or reissues it in a much-reduced form. Environmental groups will then go to the D.C. Circuit and challenge the retraction or reissuing.

The environmentalists will make two kinds of arguments. First, they’ll say that the Trump EPA’s decision was “arbitrary and capricious” in violation of the Administrative Procedure Act. The core of that argument will be that the science that supported the plan under Barack Obama’s administration is just as valid as it ever was. They’ll assert that the Trump administration’s reversal of the Clean Power Plan should be seen as motivated purely by politics, not by the reasoned application of legal policy to scientific facts that is necessary to justify any regulation.

This argument isn’t terrible. In a 1983 decision, Motor Vehicle Manufacturers Association v. State Farm, the Supreme Court rejected a decision by Ronald Reagan’s National Highway Traffic Safety Administration that rescinded air-bag and seatbelt regulations imposed under Jimmy Carter’s administration. In essence, the court held that a change in administration wasn’t a good enough reason to reverse regulation.

But the court did say in the State Farm case that the “agency’s view of what is in the public interest may change, either with or without a change in circumstances.” The requirement is that “an agency changing its course must supply a reasoned analysis.” That means a decision to rescind the Clean Power Plan could survive the challenge that it was arbitrary and capricious so long as the EPA provides sufficiently strong reasons for the change.

That will lead environmentalists to their second argument: that the Clean Air Act requires the EPA to enact something like the Clean Power Plan.

This argument will put the courts into the business of interpreting the federal statute. In the original rule adopting the Clean Power Plan, the Obama EPA announced that its interpretation was based in part on the principle of Chevron deference. The EPA repeated this position in litigation defending the plan before the D.C. Circuit.

Roughly, the EPA hinted that the Clean Air Act was ambiguous, thus giving the agency the authority to interpret the law reasonably. Under the Chevron principle, that reasonable agency interpretation is entitled to deference from the courts. Specifically, EPA interpreted the Clean Air Act to cover carbon dioxide admissions.

Under the EPA’s Chevron analysis, then, the agency was permitted to regulate CO2. But environmentalists will now want to argue that the EPA is obligated to regulate it.

The basis for that argument will be an analogy to the Supreme Court’s 2005 decision, Massachusetts v. EPA. In that 5-4 case, the court’s liberals held that George W. Bush’s EPA wasn’t permitted to treat greenhouse gases as outside its regulatory scope. Justice Antonin Scalia, in dissent, said the agency’s view was entitled to Chevron deference. But the court rejected Scalia’s view, holding that the EPA’s interpretation of the law to exclude greenhouse gases was “plainly unreasonable.”

To win, today’s environmentalists would have to convince a court that the Clean Air Act plainly requires the regulation of CO2. That will be hard, given that the EPA under Obama claimed the law was ambiguous. But it’s not impossible.

And here’s where Gorsuch and his critique of Chevron comes into play. Applying Chevron, the court’s liberals and conservatives would all have to concede that if the statute is ambiguous, then the Trump administration can flip its meaning from the meaning assigned by the Obama administration.

This would be a good chance for Gorsuch to advance his anti-Chevron views. It’s more than a little absurd that a change in administration should require a change in the meaning of a law. And it’s strange that the courts should have to defer to both of the two administrations’ opposing views.

Gorsuch’s view would require him to ask simply whether the Clean Air Act does or doesn’t require the regulation of CO2 as a form of pollution. That seems much more straightforward.

It’s worth noting that in this case, Gorsuch’s approach would potentially be better for the environmentalists, who will want the courts to ignore the Trump administration’s reading of the statute and simply consider what it really means.

That’s because Chevron always favors the party that controls the presidency. Deference to the agency is deference to the president, even though the agency may be interpreting a statute passed by the other party.

The upshot is that Gorsuch’s attack on Chevron isn’t inherently liberal or conservative. It’s inherently anti-presidential power. And it’s pro-judiciary. That might turn out to be good for the environment.

Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”

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