Years before he became President Donald Trump’s pick for the nation’s top court, Judge Neil Gorsuch delivered some disquieting news to ranchers who were fighting oil drillers.
“When you own property in the West you don’t always own everything from the surface to the center of the Earth,” Gorsuch wrote for the U.S. Court of Appeals for the Tenth Circuit in a 2014 case, Entek GRB v. Stull Ranches.
“Someone else might own the minerals lying underground and the right to access them. Someone else still might own the right to use the water flowing through your property. All this can invite confusion—and litigation,” he explained in the decision.
Gorsuch on energy and the environment:
• Gorsuch sided with drillers over ranchers in one case in a way that expanded the pathway for oil-and-gas developers to maneuver on private lands. However, he upheld a Colorado renewable energy law that was opposed by energy producers.
• If confirmed, Gorsuch may confront his first case involving environmental and energy interests in litigation over the Obama administration’s Clean Power Plan.
• The nominee’s disapproval of the Chevron doctrine that could make him reluctant to endorse rules promulgated by the EPA.
In that majority opinion, Gorsuch reversed a district court ruling and granted an Australia-based drilling concern, Entek Energy, the right to argue for additional access to ranchers’ land, including crossing it to service an oil well on adjacent federally managed lands.
That opinion is one of a handful that Gorsuch, a Colorado native and the son of the first woman to lead the Environmental Protection Agency, has written on cases related to battles between energy industry players and environmentalists.
The Entek decision takes a broad view of oil drillers’ rights under a 1916 statute and might expand the ways that others argue for leeway in pursuing energy extraction on federal lands, according to Lucy Deakins, who represented Entek, and is now a member of the Denver, Colorado area firm Dunsing & Deakins.
Also instructive, according to many lawyers eyeing his nomination and its consequences for the energy sector, is Gorsuch’s well-documented aversion to the Chevron doctrine; he wrote an now-oft quoted dissent declaring that aversion. That position could make him willing to toss rules previously promulgated by the Environmental Protection Agency or other energy industry regulators at a time when the White House has grown friendlier to climate-change skeptics.
Other times he’s shown a willingness to go out of his way to frustrate environmental advocates. In a 2011 ruling in Wilderness Society v. Kane County, he was part of a majority that held an environmental group lacked prudential standing to bring an action challenging a county government’s assertion of rights over federal lands, but he also wrote a concurring opinion to clarify all of the environmentalists claims were moot.
While questions remain about his approach to environmental and energy issues, lawyers expect an early test as challenges to Obama’s Clean Power Plan, now under expedited review in the U.S. Court of Appeals for the D.C. Circuit, land at the high court.
Gorsuch “has the intellectual chops” to replace the late Associate Justice Antonin Scalia, said Jonathan Turley, the director of the Environmental Law Advocacy Center at George Washington University Law School.
But Turley expects Gorsuch to distinguish himself from Scalia in cases concerned with the environment and the energy industry because of Gorsuch’s skepticism toward the Chevron doctrine—a cornerstone of administrative law that requires courts to defer to executive branch agencies in interpreting acts of Congress unless those interpretations are unreasonable. “That will have a wide impact on a wide range of cases dealing with environmental issues,” Turley said.
Turley is also interested in how Gorsuch, if confirmed, will rule in cases involving regulatory taking claims. In such cases, challengers to federal regulatory power argue the government unconstitutionally “takes” private property when regulation diminishes its value.
“Those cases present the most serious threat to environmentalists of this generation; they could effectively gut a host of environmental laws,” said Turley.
ON THE DOCKET
Richard Pierce, also a law professor at GWU, said Gorsuch’s influence is likely to first surface with a ruling on the Clean Power Plan litigation.
“The Supreme Court stayed the plan in a 5-4 decision four days before Justice Scalia died. The Clean Power Plan cannot go into effect unless and until the Supreme Court lifts the stay. Judge Gorsuch’s elevation to the Court makes it certain that the Clean Power Plan will never go into effect,” Pierce said.
He’s not alone in seeing the writing on the wall. Perhaps because of Gorsuch’s nomination, proponents of the plan have begun planning “for a world in which it does not exist,” Pierce said.
Specifically, Virginia enacted a statute in 2015 that was intended to allow electric utilities to recover the costs of the plan in their rates. But the state’s Democratic governor this month asked its legislature to “repeal that statute in light of the demise” of the plan.
David Spence, a professor at University of Texas’ McCombs School of Business and School of Law, agreed that the Clean Power Plan litigation could be the first significant case related to energy and the environment that Gorsuch would face if confirmed. Under the Trump administration, the Environment Protection Agency will likely pull back its objections to prior rulings halting the effective date of the plan, Spence predicted. But if the EPA stops support of the plan, and other regulations, that “will certainly generate litigation by groups arguing that the statutes require regulation of the activities that those rules addressed,” Spence said.
“So, regulation of greenhouse gases, mercury emissions from coal-fired power plants, and of depositing mining waste material in rivers and streams all seem to be likely subjects of litigation that might find its way to the Supreme Court eventually,” he said.
In addition, if the Federal Energy Regulatory Commission, under Trump, pulls back a series of rules that encourage a transition to a greener, more decentralized electric system, that too will likely trigger litigation, he said.
There, Spence said he expects Gorsuch’s views on Chevron deference to be significant.
“I don’t know a lot about Judge Gorsuch’s prior record. I do know that he is on the record expressing skepticism about the delegation of policy-making power to agencies, and seems likely to take a very restricted view of that power,” Spence said.
Those parsing Gorsuch’s record have also noted the judge’s 2015 opinion in Energy and Environment Legal Institute v. Epel, addressing whether Colorado’s renewable energy mandate violates the dormant commerce clause by impermissibly burdening out-of-state energy producers. In a win for the law’s backers, the Tenth Circuit rejected the challenge, leaving the renewable energy mandate intact. Gorsuch wrote the ruling.
In an amicus brief unsuccessfully urging the U.S. Supreme Court to take up the case, the U.S. Chamber of Commerce and the American Fuel & Petrochemical Manufacturers Association criticized Gorsuch’s legal analysis for imposing a “lax test” that could open the door to other state-imposed restrictions with economic consequences beyond state borders.
Timothy Meyer, a professor of law at Vanderbilt University Law School who clerked for Gorsuch in 2007-08, said that cherry-picking the nominee’s opinions to determine if the outcome helped the energy industry or environmental activists misses the big picture. “This should not be an inquiry into looking at outcomes but how did he approach applying these doctrines,” Meyer said.
READING THE TEA LEAVES
The life story of his mother might also provide a window into the shaping of Gorsuch’s thinking on the types of environmental regulations frequently challenged by energy industry players.
A Reagan appointee to the EPA, Anne Gorsuch Burford sought to bring “economic discipline to environmental cleanup and to give the states greater enforcement powers on matters like clean air and water,” The New York Times wrote in her 2004 obituary. Her critics claimed she weakened federal environmental enforcement; Congress sought documents about toxic-waste clean, which she refused to turn over and ultimately she resigned in 1983, as a result of the controversy, and the White House in the meanwhile quit on its claim of executive privilege to keep the documents secret.
The Entek GRB case didn’t involve the environmentalist community but rather saw ranchers pitted against energy producers. In his ruling, Gorsuch deferred to the federal government’s powers to give and take away rights from the ranchers whose interests in their property dated back to early 20th century federal land grants. Those land grants preserved certain federal government rights for the homesteaders land, including the right to enter and use so much of the surface as might be “reasonably incident” to the exploration and removal of mineral deposits, Gorsuch explained.
“Everyone knows that through the late nineteenth and early twentieth centuries the government sought to induce westward expansion by affording generous land grants to homesteaders. Everyone knows, too, that as time wore on that generosity waned,” Gorsuch wrote.
“By 1916, some complained that the government’s policy of trying to induce ranchers and farmers to work the land had turned into a bonanza for mining interests—with the government giving away not only the surface but also the oil, gas and other minerals lying beneath. In response to this criticism and with the belief that the buried riches under these lands should inure to the benefit of the whole people, not lucky homesteaders, Congress passed the Stock-Raising Homestead Act of 1916 and ensured future homestead grants would come with strings attached,” he wrote.
“Those strings still bind,” Gorsuch concluded.
Deakins, who represented the oil drillers, said Gorsuch reached a “defendable” conclusion. “He followed our reasoning,” she said, and that gave a big boost to her former clients’ oil-drilling plans.