Is Gorsuch the most self-righteous open-minded Supreme Court nominee of all?

Submitted: Mar 24, 2017
By: 
Badlands Journal editorial board

 

It is not always realized by the public how essential the judicial branch of government is to the environmental cause. Yet, every time that environmentalists publicly tangle with developers and their political retainers, the politicos always demand that environmentalists not sue, keep it out of court, settle it in the backroom "to achieve balance," or words to that effect. The cause for this plea on the part of the economic growth system is that in the United States environmental law -- regarded as the best in the world -- is built on the premise that members of the public have the right to sue when they believe the government is not upholding environmental law and regulation and, frequently in the permitting process, are also not upholding the law and regulation of public processes. These legal actions can occur is both state and federal courts, depending on jurisdictional issues, for example, the California Environmental Quality Act (state court) vs. the federal Endangered Species Act (federal court). In the imperishable commentary of Juan Cole, while the TV news is practicing "babysitting for adults," (and aren't we all sucking our thumbs on our sofas and recliners this week?), global warming, the most diffuse, overwhelming and dangerous environmental problem of all, was reported to be progressing lickety-split. At the limit, with Gorsuch on the Supreme Court, will that case both sides fear -- a direct conflict between private property rights and the Endangered Species Act -- come before the court again. with drastic results for the environment and environmental law? Or what might happen if environmentalists sue the Environmental Protection Agency, which Gorsuch's mother once headed until dismissed, or the present EPA Administrator, Scott Pruitt, former pro-fracking attorney general of Oklahoma? Or what about a case in western water law, a topic at which so many prominent members of the Denver Bar excel, for instance former secretaries of Interior Gale Norton and Ken Salazar, Bennett Raley of the Colorado River Settlement,  or Ron Brownstein (Westlands Water District's lobbyist)?

Most of all, Gorsuch radiates a certain self-righteousness completely at odds with his carefully rehearsed lines about his open mindedness. Below are perhaps some of the factors that go into that righteousness. -- blj

 

 

 

2-4-17

New York Times

In Fall of Gorsuch’s Mother, a Painful Lesson in Politicking

     

https://www.nytimes.com/2017/02/04/us/politics/neil-gorsuch-supreme-court-nominee.html?_r=0

 

...“It was an example to him of what the realpolitik of Washington could be like,” said Richard M. Segal, a Harvard Law School classmate who is now a lawyer in San Diego. “He viewed his mother as an environmentalist, and his mother viewed herself as an environmentalist. And meanwhile she was made the poster child of the view that the Reagan administration was just out there to rape the environment.”

The teenager was his mother’s conscience. “Neil knew from the beginning the seriousness of my problems,” she wrote in a memoir before her death in 2004. He was “smart as a whip” and “had an unerring sense of fairness, as do many people his age.” When she resigned, “he was really upset...”

 

 

 

3-21-17

New Republic

How Reagan’s EPA Chief Paved the Way for Trump’s Assault on the Agency

Anne Gorsuch Burford—the mother of Supreme Court nominee Neil Gorsuch—cut its budget by a quarter and its workforce by 20 percent.

 

Cally Carswell

 

 

https://newrepublic.com/article/141471/reagans-epa-chief-paved-way-trumps-assault-agency

On March 25, 1983, business was booming at Harry’s Liquor, Wine & Cheese, near the Environmental Protection Agency’s Washington, D.C., headquarters. EPA employees were in the mood to party. The agency’s top lawyer had just resigned, the latest casualty in a purge of political appointees. Weeks earlier, EPA Administrator Anne Gorsuch Burford had also resigned amid a ballooning controversy over her management of the Superfund program. Agency staff celebrated by springing for eight cases of champagne and six ounces of Russian caviar from Harry’s. One employee even took vacation time to sell commemorative T-shirts to his colleagues. They read: “I Survived the Ice Queen’s Acid Reign.”The EPA was only a decade old when Gorsuch, as she was then known—she married Bureau of Land Management Director Robert Burford in 1983—became its first female administrator. Gorsuch, a conservative state legislator from Colorado, promptly embroiled the agency in a political fight for its life. Even though Congress had recently expanded the EPA’s workload, Gorsuch and the Reagan White House cut its budget and staff. Gorsuch derided the agency’s approach to environmental protection as “bean counting,” saying it measured success by the number of enforcement actions it took or regulations it issued rather than by what they achieved. She claimed that the agency could do more for the environment with fewer resources by giving states broader autonomy to decide how to curb pollution. But many career employees, environmentalists and congressional representatives didn’t buy it, seeing Gorsuch’s philosophy as window dressing for an industry-friendly agenda to neuter environmental laws.

The debate surrounding the EPA’s future is strikingly similar today as Scott Pruitt assumes command. The former Oklahoma attorney general made a name for himself by fighting what he termed the “activist agenda” of former President Barack Obama’s EPA. Pruitt filed 14 lawsuits against the agency, including suits to block its efforts to clear smog from national parks and wilderness areas and to cut carbon emissions from power plants. Like Gorsuch, Pruitt thinks the EPA needs to relinquish more power to the states.

Some pro-environment Republicans agree, and hope Pruitt can empower the states to come up with innovative solutions to environmental problems. But many in the environmental community regard Pruitt’s arrival at the EPA as a hostile takeover, and fear that the Trump administration’s real goal is to dismantle the agency. Donald Trump said as much during the campaign, and in early March, the White House reportedly drafted a proposal to cut the EPA’s staff by 20 percent and its budget by 25 percent.

“For someone like myself, it’s like, ‘Oh my God, do we really have to do this again?’ ” says Pat Parenteau, a Vermont Law School professor who was an environmental advocate in D.C. in the early 1980s. Trump’s budget proposal mirrors the approach Gorsuch and the White House took during President Ronald Reagan’s first years in office. Ultimately, they failed to dramatically transform the EPA, and federal environmental laws have mostly survived subsequent attacks. But the political winds have shifted since Reagan’s time, in Congress as well as within the Republican Party. As Pruitt told the Conservative Political Action Conference last month, “The future ain’t what it used to be.”

This is how The New York Times described the EPA shortly before Gorsuch resigned: “Once noted for its efficiency and esprit, the agency is now demoralized and virtually inert.”

Gorsuch and Reagan cut the agency’s budget by about a quarter and its workforce by nearly 20 percent. Gorsuch also adopted a relaxed attitude toward enforcement: When a New Mexico oil refinery complained in a private meeting that it couldn’t afford to comply with regulations requiring it to produce gasoline with lower lead levels, Gorsuch told the company it wouldn’t be penalized for flouting the rules. The White House declined to discipline Gorsuch, but the incident contributed to the perception that Gorsuch was too cozy with polluters.

The issue came to a head over the Superfund program. Gorsuch took charge shortly after Superfund was created to clean up dangerously polluted places such as Love Canal, New York, a community built on top of a toxic waste dump whose residents suffered unusual illnesses and high rates of birth defects and miscarriages. The agency was supposed to develop a priority list of polluted sites and either force companies to clean them up or use money from the fund to do so itself.

Environmentalists and congressional Democrats believed that the cleanup progress was inexcusably slow, with penalties on polluters too light. At a defunct chemical waste processing facility in Indiana, for instance, Gorsuch’s EPA allowed a company to pay only a third of the cost of cleaning up aboveground pollution, and then granted it immunity from liability for belowground waste. A couple years in, the agency still hadn’t set up a registry to track health problems associated with hazardous waste pollution, as required by law.

Accusations of mismanagement led to multiple congressional investigations, and the FBI also investigated the agency for shredding documents related to the Superfund probes. Rita Lavelle, the Gorsuch deputy who headed Superfund, came under fire for accepting expensive dinners from industry and striking sweetheart deals with those companies. She later served time in jail for lying to Congress about a conflict of interest involving a former employer. Gorsuch herself was cited by Congress for contempt after refusing to turn over documents during the investigations. By Gorsuch’s own admission, the resulting political meltdown paralyzed the agency, preventing it from getting any actual work done. Gorsuch resigned in 1983 after learning the Justice Department wouldn’t defend her on the contempt charge. It was just two years into Reagan’s presidency.

“The Reagan people came into office with the same kind of fervor for rolling back environmental regulations that we’re seeing now,” says Richard Ayres, an environmental lawyer who headed the Natural Resources Defense Council’s air quality programs at the time. But their success was limited, partly due to the Superfund controversy, which emerged quickly and inhibited the administration’s ability to aggressively pursue its deregulation agenda. Their efforts also ran up against a moderate Republican Senate and a House controlled by Democrats, which worked doggedly to expose industry favoritism at EPA and keep accusations about mismanagement in the public eye. After Gorsuch left, the White House decided the rewards of waging war on environmental laws weren’t worth the political price.

“Reagan was anti-regulation,” Parenteau says, “but he didn’t have a deep hostility or resentment about environmental laws.” Reagan replaced Gorsuch with William Ruckelshaus, a moderate known for his integrity. Ruckelshaus, who was respected on both sides of the aisle, helped restore the agency’s credibility.

The Republican presidents since Reagan — George H.W. Bush and George W. Bush — mostly chose EPA administrators who were experienced environmental professionals, consistent with the Ruckelshaus model. Pruitt, on the other hand, appears to have been selected for his deep distrust of the agency.

In today’s Republican Party, he’s not an outlier. “It’s probably best to see the Pruitt EPA not as a special Donald Trump twist on the EPA, but as the latest evolution in a larger conservative attack on the agency,” says Paul Sabin, a Yale University environmental historian. Gorsuch and her ideological brother James Watt, who was Reagan’s Interior secretary until 1983, were part of the vanguard of the conservative resistance to the landmark environmental laws passed in the 1970s, which vastly expanded the federal government’s role in protecting air, water and biodiversity. Since then, the tactics for undermining these protections have grown more sophisticated and been widely embraced by the Republican Party, Sabin says. Today, a formidable network of think tanks and right-wing media pushes deregulation at the state and federal level, and critics attack the science that underlies environmental regulation. “A major shift in the party was with the ’94 election and the Gingrich revolution,” Sabin says. “That’s when the party gets more purified in its hostility toward environmental regulation.

That hostility has reached an apex in the current Congress, which is unlikely to be the check on EPA inaction that it was with Gorsuch, leaving the job primarily to environmental attorneys and the courts. Some House Republicans are intent on pursuing their own deregulatory agenda, with a recently introduced bill to abolish the EPA altogether, as well as talk of repealing and replacing the Endangered Species Act and a recent vote to block EPA rules to protect streams from pollution from coal mines.

Pruitt, for his part, declined to name a single EPA regulation he supports during his confirmation hearing. He also refused to promise to continue to allow California to enact its own strict clean-car standards, despite his stated commitment to states’ rights. The priorities he’s highlighted since include rolling back Obama-era clean water rules and carbon regulations, though he has also promised to promote Superfund cleanups, water infrastructure improvements and compliance with existing air-quality standards.

“The idea that he will just slash and burn the agency, I think, is mistaken,” says Brent Fewell, a D.C. water lawyer and philosophical conservative who served in the number-two spot in the EPA’s Office of Water under George W. Bush. “It’s not that he hates the EPA. He hates overreach.” There are gray areas in the Clean Air and Water acts that the EPA has tried to fill in over time, and Fewell thinks Pruitt has a legitimate point that it’s sometimes gone too far.

Environmentalists tend to hear calls for state rights as code for fewer constraints on industry and more pollution. But Fewell says those outcomes aren’t inevitable. He’s optimistic about states assuming an expanded role in environmental protection. States already shoulder a lot of responsibility for implementing federal environmental regulations, but Fewell says the EPA tends to micromanage them, not giving them much freedom to devise their own methods of meeting clean air or water standards. That breeds resentment: “There’s a lot of fighting. I believe if the states are incentivized to be more creative, we could see more environmental protection.”

Of course, it’s possible that while, in theory, a more restrained EPA could inspire states to become more proactive, in practice some states will step up and others will step back. Gorsuch’s tenure didn’t last long enough to let that experiment play out. If Pruitt’s does, we may soon learn how closely theory and practice align.

This story was originally published by High Country News and is reproduced here as part of the Climate Desk collaboration.

 

3-23-17

Truthdig.com/Informed Comment

The Worst Climate News in the Age of Trump

Juan Cole / Informed Comment

http://www.truthdig.com/report/item/top_4_worst_pieces_of_climate_news_from_the_united_nations_trump_20170323

The World Meteorological Organization of the United Nations issued its annual report on the climate on Tuesday, making a full and final assessment of 2016.

It was not good news.

It was big news, but it wasn’t good news. Also, surprise, it wasn’t reported on most television “news,” otherwise known as babysitting for adults.

1.

“Warming continued in 2016, setting a new temperature record of approximately 1.1°C above the pre-industrial period, and 0.06 °C above the previous highest value set in 2015.

Last year was the warmest year on record in North America. What was strange about the unusual warmth of 2016 was, moreover, how widespread it was over the globe. And it hit the oceans, as well. In fact, the heat in the seas actually literally killed fish around Fiji!  And it killed off a lot of coral.

The average global temperature is about 2 degrees Fahrenheit higher than it was in 1750 before the industrial revolution and modern agriculture spewed so many billions of metric tons of carbon dioxide into the atmosphere! CO2 is a greenhouse gas that interferes with the earth’s ability to radiate back out to space the heat it receives from the sun, trapping it. The more heat that is trapped, the hotter the earth will get over time on average.

2 degrees F. is more than it sounds, because it is a global average, including the very cold oceans and the arctic and Antarctica. In some places, the increase has been more.

Even worse, the rate of increase is speeding up. That’s alarming, that 2016 was 0.06°C. hotter than just the year before!

Scientists are concerned that if we get much beyond a 2°C./ 3.6°F. increase, the climate could start to become dangerously unstable. It could result in much less rainfall in some places and megastorms in others. Not to mention that some gigantic glaciers will plop into the ocean that all by themselves could raise sea-levels rapidly and significantly. But at the rate we’re going, the likelihood of us halting the increase at 3.6°F. is ridiculously low. On the other hand, the lower we can keep the increase, the better off we and our descendants will be.

We’d like to avoid a 4 C. / 7 F. world at all costs. But the average increase could go on up to 12°F. if Rex Tillerson gets his way and we burn up all the fossil fuels. That would be inconvenient in the extreme for a lot of people on earth.

All this is because: 

2.

“Carbon dioxide (CO 2) reached
new highs at 400.0 ± 0.1 ppm in the atmosphere 
at the end of 2015.”

I know most people don’t read print newspapers anymore, but in the old days we would say that this should have been a massive headline above the fold.  What would you say now? It should have dominated people’s social media feeds?  It is more important than Russian fake news and cute kitten videos?

We have surpassed 400 parts per million of carbon dioxide in the atmosphere! In 1750 it was like 280 ppm. That’s why the temperature has gone up 2 degrees F. since then! Lots more greenhouse gases in the atmosphere. There is no known way to get the CO2 back out of the atmosphere artificially! A lot of it will go into the ocean, which is a carbon sink, but that will vastly increase the acidity of the ocean and kill off half of marine life. 10% of the 7.4 billion human beings mainly live on marine life. The rest will get washed out of the atmosphere by binding with igneous rock. That will take at least 100,000 years.  It’s going to be hyper-tropical for a long time.  Maybe we can splice into ourselves some genes from tropical fauna to make it more bearable.  That won’t help with the megastorms, though. And we can’t really do that gene splicing thing anyway, at least so far.

3.

“Global sea-ice extent dropped more than
4 million square kilometers below average
– an unprecedented anomaly – in November.”

Ice shelves in the ocean already don’t contribute to sea level rise when they melt, but if it is melting so is the surface ice. And you really don’t want surface ice melting if you live anywhere near a seashore.

Another site explains,

“In November 2016, Arctic sea ice extent averaged 9.08 million square kilometers (3.51 million square miles), the lowest November in the satellite record. This is 800,000 square kilometers (309,000 square miles) below November 2006, the previous lowest November…”

And just in case you’re wondering, yes, this is something we are doing with our gasoline, natural gas and coal emissions. It may be exacerbated by weather cycles, but we’re causing the maximum weirdness of it.

4.

“Global sea levels rose strongly during
the 2015/2016 El Niño, with the early 2016 values
making new records.”

The report notes, “Globally, sea level has risen by 20 cm [about 8 inches]  since the start of the twentieth century, due mostly to thermal expansion of the oceans and melting of glaciers and ice caps.”

But when we come to just last year the WMO says, “Global sea levels rose strongly during the 2015/2016 El Niño, rising about 15 mm [over half an inch] between November 2014 and February 2016, well above the post-1993 trend of 3 mm – 3.5 mm per year, with the early 2016 values reaching new record highs.”

Since 1900, the oceans have gone up about two-thirds of a foot, but in just last year they rose half an inch!

There are other things in the report, such as the natural disasters that have a component of human-caused climate change, including typhoons and hurricanes and droughts. You figure at least 20% of any of these is likely driven by the greenhouse gases we’ve all been belching into the atmosphere.

So there we have it, folks. We live in a country where the head of the EPA can lie about what is going on and why it is going on without fear of accountability.

The onus is now on us as individual Americans to do the right thing by the earth and reduce our carbon footprint. Here’s some ways we can resist Pruitt’s anti-EPA and help save the planet.

 

 

 

3-21-17

The Hill

Gorsuch refuses Whitehouse's request to ask shadowy backers to reveal themselves

Alexander Bolton

http://thehill.com/homenews/senate/325027-gorsuch-refuses-whitehouses-request-to-ask-shadowy-backers-to-reveal

 

 

 

Supreme Court nominee Neil Gorsuch during his confirmation hearing on Tuesday pointedly refused Sen. Sheldon Whitehouse’s (D-R.I.) request that he publicly ask conservative donors funding a $10 million advertising campaign run by the conservative Judicial Crisis Network to identify themselves.

Though he did not name Judicial Crisis Network by name, Whitehouse asked why the group spent at least $7 million to keep President Obama's nominee, Merrick Garland, from getting a confirmation hearing and is now spending $10 million to get Gorsuch confirmed.

“Ask them,” Gorsuch said.

“I can’t, because I don’t know who they are,” Whitehouse replied. 

Whitehouse asked that Gorsuch, as a “matter of courtesy to the process,” ask his anonymous backers to reveal themselves so the public could know what interests favor his confirmation.

“You could ask right now as a matter of courtesy, as a matter of respect for the process that anybody funding this should declare themselves right now so we can evaluate who is behind this effort,” Whitehouse said.

Gorsuch declined to take the bait.

“It would be a politics question and I’m not, with all respect senator, going to get involved in politics,” he said.

Gorsuch said if lawmakers want to pass legislation that would require that political advocacy groups to disclose their donors, they could do that.

“If you want to have more disclosure, pass a law,” he said.

Whitehouse retorted that Gorsuch's answer was not sufficient because he failed to state his "values" on the perceived problem of special interest influence in the political process.

 

 

 

3-21-17

Commondreams.org

Gorsuch Refuses Chance to Condemn 'Dark Money' Lobbying on His Behalf

Judge Neil Gorsuch claims he 'speaks for' himself, but secretive sources have spent millions to get him confirmed for a reason

 Lauren McCauley

http://www.commondreams.org/news/2017/03/21/gorsuch-refuses-chance-condemn-dark-money-lobbying-his-behalf

Putting a rare spotlight on the shadowy conservatives pushing for confirmation of Judge Neil Gorsuch, Sen. Sheldon Whitehouse (D-R.I.) on Tuesday directly questioned the nominee on the dark money groups supporting his bid.

During the second day of questioning by the Senate Judiciary Committee, Whitehouse called on Gorsuch to urge his undisclosed donors to reveal themselves "as a matter of respect for the process...so we can evaluate who is behind this effort."

The Hill reported that, while "he did not name Judicial Crisis Network by name, Whitehouse asked why the group spent at least $7 million to keep President [Barack] Obama's nominee, Merrick Garland, from getting a confirmation hearing and is now spending $10 million to get Gorsuch confirmed."

"You'd have to ask them," was Gorsuch's retort, to which Whitehouse replied: "I can't because I don’t know who they are. It is just a front group."

According to the Los Angeles Times:

The exchange seemed to annoy the otherwise unflappable nominee. 

When Republicans on the panel came to his defense and gave Gorsuch another opportunity to address the issue of what Whitehouse called "dark money" supporting his nomination, Gorsuch was resolute. 

"Nobody speaks for me," he said of the suggestion the group represented him. "Nobody. I speak for me. I am a judge. I don't have spokesmen. I speak for myself."

Watch the exchange below.

The Judicial Crisis Network is among a tight-knit network of conservative organizations and activists that have been actively trying to reshape the American judiciary system, according to New York Times journalist Eric Lipton.

In a recent exposé, Lipton revealed the effort currently being led by conservative activist Leonard Leo, former executive vice president of the conservative Federalist Society, who was tapped by the White House to "shepherd the Gorsuch nomination."

Lipton wrote:

This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network and related dark-money groups that also support the cause.

While a free-market agenda and the desire to place judges who will be more skeptical of federal and state regulations is a driving force, several central players in the group are also motivated by intense religious beliefs.

Appearing on Democracy Now! on Tuesday, Lipton further revealed that the Judicial Crisis Network—a so-called grassroots organization that has spent millions of dollars on pro-Gorsuch television and radio ads—only has two unknown donors listed on their tax records, which he tied back to Ann and Neil Corkery and their organization the Wellspring Committee.

According to OpenSecrets.org, the Corkery's have either been board members or officers with "the Catholic League, an aggressive defender of the church against what it sees as 'slanderous assaults,'" and "the National Organization for Marriage, which has fiercely fought official recognition of gay marriage," in addition to the Judicial Crisis Network.

Another shadowy group, the Koch Brothers'-backed Concerned Veterans for America, has also been a leading proponent of Gorsuch, flooding conservative districts where a Democrat faces re-election with calls, urging voters to contact their Senators and demand confirmation, according to the right-wing National Review.

Going a step further and connecting the conservative donors with Gorsuch's controversial view in regards to the "Chevron deference," Lipton explained how his confirmation could pave the way for massive deregulation.

In a 2016 court opinion, Gorsuch wrote that the idea that courts should defer to experts at agencies has "permit[ted] 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 of the framers’ design. Maybe the time has come to face the behemoth."

As Lipton told Democracy Now!:

[Y]ou look at Judicial Crisis Network. Who—in addition to spending millions of dollars on ads to get Gorsuch confirmed, what else is Judicial Crisis Network spending a lot of money on? It's spending millions of dollars to get Republicans elected as state attorneys general. And the reason that is, is they want Republican attorneys general to bring cases in state and federal court that challenge federal regulations, which they think are overreaching, and then to get those cases into the court, in which they then help pick the judges and have more conservative judges, and then will have decisions which limit the federal powers. 

And I think that, you know, that Gorsuch is—if you look at his record, it's reasonable to expect that he will—he will believe in a more—a narrow interpretation of the law and that any time that a federal agency goes too far, that it’s appropriate for the courts to review it and decide if it has stepped beyond its bounds.

 

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