Neil Gorsuch. (Photo: Diego M. Radzinschi / ALM) Neil Gorsuch. (Photo: Diego M. Radzinschi / ALM)

 

Just days before Neil Gorsuch will plunge into the U.S. Supreme Court’s menu of regulatory challenges, a Washington federal appeals judge on Tuesday turned to the newest justice to bolster her own concerns about the deference that courts give to agencies’ interpretation of their rules.

The U.S. Court of Appeals for the D.C. Circuit, in the case Waterkeeper Alliance v. Environmental Protection Agency, took up a challenge to an environmental rule about certain reporting requirements associated with the air pollutants from animal waste. (Spoiler alert: the agency lost. The court vacated the rule.)

The resolution of the case gave the panel judges another chance—a regular trip in the D.C. Circuit—to turn to the bedrock 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. That ruling said judges must defer to an agency’s interpretation of any ambiguity in the law. This seminal case has received substantial newfound attention—Gorsuch is famously opposed to the Chevron ruling, which he has called a “judge-made doctrine for the abdication of the judicial duty.”

Chevron analysis requires a two-step process. The first step asks whether Congress has spoken directly to the precise question at issue. The second step asks whether the agency’s interpretation is rational or reasonable and should be upheld.

Judge Janice Rogers Brown on Tuesday wrote about the dangers of any court that reduces the two-step analysis to a single step. She pointed to Gorsuch’s 2016 decision, on the 10th Circuit, in Gutierrez-Brizuela v. Lynch.

Skipping step one by going directly to step two leaves Congress “out of the picture altogether,” Brown wrote. Agencies, she said, “are free to experiment with various interpretations, and courts are free to avoid determining the meaning of statutes.”

Brown added: “An Article III renaissance is emerging against the judicial abdication performed in Chevron’s name.”

And she implied—through a citation—that Gorsuch may be part of that movement.

Brown quoted from Gorsuch’s decision in Gutierrez-Brizuela: “For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law.”

Gorsuch warned then that Chevron deference allowed agencies “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Tuesday’s appearance of Gorsuch’s ruling in a D.C. Circuit decision could be the first in that court. (The Gorsuch case was decided in August 2016—it’s not terribly old.)

Brown is not alone on the federal appellate bench in using Gorsuch’s opinion to sound an alarm about Chevron.

Judge Kent Jordan of the Third Circuit, in a March opinion concurring in the judgment in Egan v. Delaware River Port Authority, cited Gorsuch’s decision as he called for a re-examination of Chevron.

Gorsuch’s opinion in Gutierrez-Brizuela did appear in an amicus brief filed by the National Association of Criminal Defense Lawyers in the Supreme Court case Esquivel-Quintana v. Lynch. The justices heard argument on Feb. 27.

Gorsuch, by tradition, would not vote in that case.