High court pick Gorsuch could help decide fate of Trump's climate policy

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WASHINGTON, March 30 (Reuters) - Donald Trump's Supreme Court nominee could help decide the fate of his moves to undo climate-related U.S. regulations, but legal experts said Neil Gorsuch's judicial record makes it hard to predict whether as a justice he would back a sweeping rollback.

If confirmed to the lifetime job by the Senate, the Colorado-based federal appeals court judge would restore the court's 5-4 conservative majority. The Senate is planning an April 7 confirmation vote although many Democrats are fighting to block Gorsuch.

On the court, Gorsuch could become a pivotal vote on the Republican president's deregulation agenda, along with fellow conservative Anthony Kennedy, who sometimes joins the court's four liberals in close cases.

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Judge Neil Gorsuch speaks, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. President Donald Trump on nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives' favor.

(NICHOLAS KAMM/AFP/Getty Images)

Judge Neil Gorsuch (C) and his wife Marie Louise look on, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. President Donald Trump nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives' favor.

(BRENDAN SMIALOWSKI/AFP/Getty Images)

Judge Neil Gorsuch (L) and his wife Marie Louise look on, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. Trump named Judge Neil Gorsuch as his Supreme Court nominee.

(BRENDAN SMIALOWSKI/AFP/Getty Images)

Judge Neil Gorsuch speaks, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. President Donald Trump on nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives' favor.

(BRENDAN SMIALOWSKI/AFP/Getty Images)

Swearing in of Coloradan Neil M. Gorsuch as the newest member of the, United States Court Of Appeals For The Tenth Circuit, with his wife Louise Gorsuch, holding the bible, and his two daughters, Belinda Gorsuch age 4, and Emma Gorsuch age 6.

(Denver Post Photo By John Prieto)

U.S. President Donald Trump steps back as Neil Gorsuch (L) approaches the podium after being nominated to be an associate justice of the U.S. Supreme Court at the White House in Washington, D.C., U.S., January 31, 2017.

(REUTERS/Carlos Barria)

Robert Hoyt, left, General Counsel of the Department of the Treasury, is congratulated by Secretary of the Treasury Henry Paulson as Judge Neil Gorsuch with the US Court of Appeals for the Tenth Circuit, looks on in the Cash room of the Treasury Building in Washington, D.C., Friday, January 5, 2007.

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Neil Gorsuch speaks after U.S. President Donald Trump announces his nomination of Gorsuch to be an associate justice of the U.S. Supreme Court at the White House in Washington, D.C., U.S., January 31, 2017.

(REUTERS/Carlos Barria)

U.S. President Donald Trump announces his nomination of Neil Gorsuch to be an associate justice of the U.S. Supreme Court as Gorsuch (R) stands with his wife Marie Louise at the White House in Washington, D.C., U.S., January 31, 2017.

(REUTERS/Carlos Barria)

Swearing in of Coloradan Neil M. Gorsuch as the newest member of the, United States Court Of Appeals For The Tenth Circuit, with his wife Louise Gorsuch, holding the bible, and his two daughters, Belinda Gorsuch age 4, and Emma Gorsuch age 6.

(Denver Post Photo By John Prieto)

Neil Gorsuch stands with his wife Marie Louise as U.S. President Donald Trump announces his nomination of Gorsuch to be an associate justice of the U.S. Supreme Court at the White House in Washington, D.C., U.S., January 31, 2017.

(REUTERS/Carlos Barria)

Judge Neil Gorsuch speaks, after US President Donald Trump nominated him for the Supreme Court, at the White House in Washington, DC, on January 31, 2017. President Donald Trump on nominated federal appellate judge Neil Gorsuch as his Supreme Court nominee, tilting the balance of the court back in the conservatives' favor.

(BRENDAN SMIALOWSKI/AFP/Getty Images)

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That agenda includes Trump's effort to kill Democratic former President Barack Obama's so-called Clean Power Plan, blocked by the high court last year, aimed at reducing climate-warming carbon emissions from mainly coal-fired power plants. Trump on Tuesday signed an executive order kicking off a lengthy review process that environmental groups and Democratic-governed U.S. states have promised to challenge in court.

Gorsuch's views on issues related to climate change are unclear. His mother headed the U.S. Environmental Protection Agency under Republican former President Ronald Reagan for two years in the 1980s.

Gorsuch was not asked about climate issues during his Senate Judiciary Committee confirmation hearing last week. In his 11 years as a judge, the only major ruling touching upon climate policy came in 2015 when he was on a three-judge panel that upheld a Colorado measure requiring power generators to ensure a fifth of their electricity came from renewable sources.

A 2016 case on federal agency power is potentially more instructive on how he might approach broad moves to slash current regulation, according to experts.

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Where SCOTUS nominee Neil Gorsuch stands on key issues
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Where SCOTUS nominee Neil Gorsuch stands on key issues

Supreme Court nominee Neil Gorsuch looks on as Senate Judiciary Committee. President Donald Trump has nominated Judge Gorsuch to the Supreme Court to fill the seat that had left vacant with the death of Associate Justice Antonin Scalia in February 2016.

(Photo by Drew Angerer/Getty Images)

Abortion

Gorsuch has never directly ruled on Roe v. Wade, the 1973 ruling that legalized abortion in the U.S., but he was pressed on the landmark ruling during his Senate confirmation hearing. 

When Sen. Lindsey Graham (R-S.C.) asked Gorsuch what he would have done if President Trump asked him to overturn Roe v. Wade, the judge responded, "I would have walked out the door. It's not what judges do. I don't do it at that end of Pennsylvania Avenue and they shouldn't do it at this end either, respectfully."

Some refer to passages from a book Gorsuch wrote on assisted suicide. In the book, The Future of Assisted Suicide and Euthanasia, Gorsuch wrote, "The idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong."

(Photo credit should read JIM WATSON/AFP/Getty Images)

Second Amendment

Gorsuch has never directly ruled on the Second Amendment. However, during his confirmation hearing, Sen. Dianne Feinstein (Calif.) questioned Gorsuch on District of Columbia v. Heller -- a landmark ruling that overturned a ban on handguns and certain requirements when storing guns in Washington D.C. 

Gorsuch offered limited responses to Feinstein's questioning, but did conclude that Heller was the "law of the land." 

(REUTERS/John Sommers II/File Photo)

Religion

Gorsuch is widely regarded as a strong proponent of religious liberty.

In a landmark ruling, Gorsuch sided with an employer in the Burwell v. Hobby Lobby Stores, Inc. case in 2013, making it legal for a non-profit organization to deny employees access to contraceptives if it goes against their religious beliefs. The case ultimately reached the Supreme Court, where it was also ruled in the favor of Hobby Lobby. 

In another case, Gorsuch ruled in favor of a Wyoming inmate. The ruling allowed the inmate to use a prison yard sweat lodge, that he had previously been denied access to, for Native American religious worship.

(Getty)

Immigration

Gorsuch has not hinted to how he feels about President Trump's proposed travel ban, and many experts are split on how the SCOTUS nominee would vote on the executive order that bans immigrants from six majority-Muslim countries. The ban is currently suspended following rulings by federal judges in Hawaii and Maryland. 

Gorsuch has sided with immigrants in past cases, and as Cornell University constitutional law professor Michael Dorf noted to the Denver Post -- "Gorsuch’s sympathy for people in religious cases, a general skepticism of executive power and a history of ruling for immigrants give some reason to think he could be sympathetic to plaintiffs challenging a ban on people from certain countries."

(REUTERS/Eric Thayer)

Environment

In the 2015 case Energy and Environment Legal Institute vs. Epel, Gorsuch sided with a Colorado law that requires 20 percentage of electricity sold in the state to be from renewable sources. The case was filed by an out-of-state coal company, claiming the law was a threat to interstate commerce. 

(REUTERS/Jim Urquhart)

LGBTQ rights

When pressed about gay rights and strict interpretations of the law by Sen. Dianne Feinstein, (D-Calif.) during his confirmation hearing, Gorsuch responded that "no one is looking to return us to horse and buggy days."

"We’re trying to interpret the law faithfully, taking principles that are enduring and a Constitution that was meant to last ages and apply it and interpret it to today’s problems." 

Gorsuch also told the Senate Judiciary Committee, "A good judge starts with precedent and doesn’t reinvent the wheel. So to the extent, there are decisions on these topics — and there are — a good judge respects precedent."

(Photo by David McNew/Getty Images)

Marijuana

While Gorsuch does hail from Colorado, the first state to legalize marijuana for recreational use, it is still unclear where he stands on the issue.

In 2015, Gorsuch ruled against a dispensary, forcing the company to pay taxes on items they wrote off as business expenses in an effort to avoid incriminating themselves due to a federal law banning marijuana. 

(Photo by Linda Davidson / The Washington Post via Getty Images)

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In that case, Gorsuch questioned a 1984 Supreme Court precedent giving federal agencies broad deference to interpret laws. Gorsuch called the doctrine, enshrined in the Chevron v. Natural Resource Defense Council ruling, an "elephant in the room" that concentrates federal power "in a way that seems more than a little difficult to square with the Constitution."

Questions remain over how that approach would manifest itself if applied to efforts by Trump's EPA to weaken or rescind existing agency regulations on fighting climate change. Some environmental lawyers say it could mean Gorsuch would be skeptical of any big changes at the agency level. The EPA under Obama compiled detailed scientific data to support its efforts to curb carbon emissions.

"That could hamper the Trump administration," said Jonathan Adler, a conservative law professor at Case Western Reserve University School of Law in Cleveland.

Sean Donahue, a lawyer who represents environmental groups, agreed, saying if the EPA were to "advance fancy interpretive footwork to try to make greenhouse gases not a Clean Air Act pollutant," the administration may not get the deference it wants.

The extent to which the U.S. Clean Air Act, the law that tackles air pollution, applies to carbon emissions is heavily contested in the courts. The Supreme Court, in the landmark 2007 decision Massachusetts v. EPA, held that carbon is a pollutant that could be subject to regulation under the law.

In a 2014 case, the court largely upheld the Obama administration's first batch of greenhouse gas regulations.

Environmental groups including the Sierra Club have said they are ready to pounce if they see signs that Trump's EPA, headed by fossil fuels industry ally Scott Pruitt, is ignoring science in making climate-related regulatory changes.

"I think the bottom line is that we hope any anti-regulatory rule-making should be so unscientific ... almost any federal judge should see through the Trump administration maneuvering," said Pat Gallagher, a Sierra Club lawyer.

(Reporting by Lawrence Hurley; Editing by Richard Valdmanis and Will Dunham)

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