The US Senate today confirmed Judge Neil Gorsuch as a Supreme Court Justice, and the White House promptly scheduled his swearing-in ceremony for Monday.
As we said when he was nominated, Gorsuch is likely to be the tie breaking vote in any Clean Power Plan (CPP) case that gets to the Court. The CPP rules limited carbon emissions in states above a pre-determined baseline by requiring carbon sequestration at new and existing power plants and incentivized the use of wind, solar and other clean energy sources.
In his judicial opinions, Gorsuch has been critic of the Chevron doctrine which requires courts to defer to reasonable agency interpretations of ambiguous statutes. As a result, Gorsuch may not only be a pivotal vote on the CPP but many other environmental and energy cases involving agency interpretations of laws.
In late March President Trump signed an executive order directing EPA to “suspend, rescind or revise” the CPP.
In response, the Justice Department filed a petition asking the DC Court of Appeals to pause any decision on the CPP since EPA was withdrawing or changing the rule. CPP supporters also filed motions urging the court to keep the case on track and make a decision.
It seems unlikely that the court would make a decision a rule on which the Supreme Court had stayed implementation and now the agency was no longer standing behind.
On the slim chance that the court of appeals decides to issue a decision, it is almost certain to be heard on the Supreme Court.
Enter new Justice Gorsuch. When the Supreme Court last considered the CPP, it resulted in a 5-4 decision halting the CPP implementation while litigation proceeded in lower courts. The Court vacancy after Justice Scalia’s death likely left the Court with a 4-4 tie on any future CPP case, a situation that would result in the lower court’s opinion being upheld. Gorsuch now likely means a majority of the Court would again side against EPA.
Meanwhile, EPA has begun work to implement the executive order directing the agency to “suspend, rescind or revise” the CPP. It has already sent a letter to states informing them that they no longer need to work on state plans under the CPP.
In order for EPA to withdraw the Obama rule, it’s our view that the agency is almost certainly required to start a new rulemaking process that develops a revised and likely less-harsh regulatory approach. Unless the endangerment finding on greenhouse gases is nullified or Congress amends the Clean Air Act, EPA would be required to regulate GHG emissions but could do so by developing a completely different approach from the Obama EPA.
However, the current signals from EPA seem to be more focused on CPP repeal and nothing on replace.
Surely environmental groups and Democrat-controlled states will challenge the legality of the Trump executive order and EPA actions to roll back the Obama CPP. However, we think the Gorsuch confirmation greatly increases the likelihood that the Trump EPA decisions are upheld.
