Just last year, when he was a federal circuit court judge in Denver, the Supreme Court’s new justice, Neil Gorsuch, did something judges rarely do. Gorsuch wrote the main opinion, explaining why he and two other judges on the 10th Circuit Court of Appeals ruled against the Obama administration in Gutierrez-Brizuela v. Lynch, an immigration case. But then he added an even longer analysis — just from himself — sharply criticizing a judicial precedent that federal agencies and environmental groups have relied on for decades to protect people, public lands and rare species. Known as the Chevron doctrine, it stems from a 1984 Supreme Court ruling.
Under Chevron, courts have given agencies wide leeway to interpret ambiguous statutes. Gorsuch wrote that the doctrine has allowed “executive bureaucracies 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.”
Chevron has been pivotal in upholding key environmental regulations, from protecting habitat for endangered species to regulating pollution. Gorsuch’s aversion to it worries some Western legal experts, who fear that the nation’s highest court will no longer permit federal agencies to create safeguards for the West’s lands, waters, air and wildlife that are not explicitly required by Congress. “The statutory mandate of land-management agencies like the Forest Service, Bureau of Land Management and Park Service is old and creaky,” said Fred Cheever, a professor of natural resources and environmental law at the University of Denver Law School. “The combination of lack of deference and antiquated laws creates a potential conflict that may dramatically impact the West.”