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Richard Lazarus & Andrew Slottje, Justice Gorsuch and the Future of Environmental Law, 43 Stan. Env't L.J. 49 (2024).

Abstract: Justice Gorsuch will have completed his seventh year on the Supreme Court when the Justices recess for the summer later this year. If those seven years are prologue, the Justice’s longer-term impact on environmental law may well exceed even the worst fears expressed by environmentalists who opposed his confirmation. Whether assessed quantitatively or qualitatively, Justice Gorsuch is a solidly conservative vote skewed against legal positions that environmentalists favor, with the potential to unsettle the entire federal administrative state upon which much of federal environmental law depends. His votes and opinions do not evince hostility to environmentalism per se, but instead reflect misgivings about the heightened roles that the national government and federal executive branch officials serve in administering environmental law. No doubt there will be instances when Justice Gorsuch’s views on cross-cutting issues of constitutional law tip in favor of particular outcomes protective of the environment, but these are likely to be the exception. Justice Gorsuch’s views on separation of powers have already proven incompatible with the efforts of the United States Environmental Protection Agency and other federal agencies to assert the kind of expansive authority necessary to meet today’s compelling environmental problems. His views on federalism are even more foreboding, especially his exceedingly narrow conception of congressional Commerce Clause authority to address environmental protection concerns. With regard to federalism, there is potential for some votes favorable to environmentalists when state and local governments, rather than the federal government, champion environmental causes. However, even that mitigating potential seems likely to be diminished in light of the Justice’s evident concern that environmental protection requirements, regardless of the sovereign imposing them, unduly burden individual liberty and private property interests.