In a variety of cases, Justice Neil Gorsuch has stated that government regulation of private conduct should be difficult to adopt and to sustain in court challenges because it infringes on the liberty of the regulated actor. His writings typically frame regulatory questions as a conflict between individual liberty and overbearing government agencies. This theme appears in his opinions on many subjects, including non-delegation, major questions, and statutory construction, which are the subject of this note.

In many contexts, however, the liberty issue is not simply a binary tension between the regulated individual and the government. Congress has enacted a wide variety of laws to address situations where a private entity’s conduct harms the health, safety, economic well-being, or environment of others. The interests that such legislation is designed to protect – the right of individuals not to be harmed or have their freedom abridged by someone else’s private conduct – are also liberty interests. Just as at common law, such statutes typically strike a balance (or direct an agency to strike a balance) between the interests of those who create harms and those who suffer them. In other words, two competing liberty interests are at stake, not one.

The question this note asks is where do the liberty interests of those who are harmed—the intended beneficiaries of regulatory statutes—fit into Justice Gorsuch’s calculus?

To give the Justice credit, in his opinions and his other writings (such as his 2024 book, Over Ruled), Gorsuch frequently cites examples of sympathetic individuals, often of little means, who find themselves crushed by the machinery of government. But rarely do you see examples of similarly sympathetic individuals who are crushed by the machinery of private businesses, whether through pollution, unsafe workplaces, fraud, or other forms of economic exploitation.

I want to start with one exception: Atlantic Richfield v. Christian, 590 U.S. 1 (2020), where Justice Gorsuch dissented from a ruling that curtailed the rights of Montana landowners living in the arsenic-contaminated zone surrounding a defunct copper smelter. They sued the smelter’s current owner for clean-up costs. The Court majority ruled that under the Comprehensive Environmental Response, Compensation, and Liability Act (“Superfund”), the landowners needed the Environmental Protection Agency’s approval to pursue Atlantic Richfield for the costs of reducing arsenic contamination below the relatively high level that EPA had deemed acceptable. Justice Gorsuch’s sympathy for the landowners is readily apparent, especially in the chapter of Over Ruled dedicated to this case. But there he focuses on federalism implications, not the landowners’ liberty interests. Why, he asks, should we not let Montana offer them state common law remedies beyond the protections provided by the federal law?

More frequently, Justice Gorsuch’s opinions focus on the liberty interests of regulated entities without any comparable attention to the liberty interests of those whom Congress intended to protect. For example, he supports a more robust non-delegation doctrine because the framers “believed the new federal government’s most dangerous power was the power to enact laws restricting the people’s liberty.…To address that tendency, the framers went to great lengths to make lawmaking difficult.” Gundy v. United States, 588 U.S. 128, 154 (2019) (Gorsuch, J. dissenting).

He makes the same point in concurrences in several major questions doctrine cases. For example, in the COVID vaccine mandate case, Gorsuch wrote: “If administrative agencies seek to regulate the daily lives and of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.” National Federation of Independent Business v. Dep’t of Labor, 595 U.S. 109, 124 (2022). Protections are needed to prevent “intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.” Id. at 125. And concurring in restricting what techniques EPA may use to regulate climate-warming pollution from power plants, Gorsuch wrote: “The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty.” West Virginia v. EPA, 597 U.S. 697, 738 (2022). The theme is apparent as well in Justice Gorsuch’s concurrence in Loper Bright v. Raimondo, which begins by framing the case as a “dispute[] between individuals and the government about the meaning of a federal law.” 603 U.S. 369, 416 (2024).

In none of these opinions does Justice Gorsuch give any apparent weight to the liberty interests of those Congress enacted a statute to protect. In Gundy there is no mention of the interests of the community members that the sexual predator notification law was designed to protect. In NFIB, he attends to how the vaccine-or-test mandate encumbered the liberty of workers who objected to COVID vaccinations. But there is no mention of the impact of letting COVID spread in the workplace on the liberty of other workers, who were put to the choice of exposing themselves, their families, and neighbors or quitting their jobs. Protecting workers from illness and other dangers incurred in the workplace is, of course, the point of the Occupational Safety and Health Act.

Likewise, in West Virginia Justice Gorsuch focused on how the Clean Power Plan would have limited the liberty of power plant operators and fuel suppliers. But there is no mention of effect on the liberty of the population that the Clean Air Act is intended to protect – people who lose their lives, health, or property in the heatwaves, storms, and other extreme weather to which power plants’ climate-changing pollution contributes.

The liberty interests of those endangered by climate change will be front and center in review of the Trump administration’s repeal of the 2009 “endangerment finding” and 15 years of vehicle emission standards. That case is now before the D.C. Circuit Court of Appeals in American Public Health Ass’n v. EPA, Nos. 26-1037 et al. At every turn in the repeal rulemaking, EPA elevated the interests of the pollution sources and diminished the interests of the public whose health and welfare the Clean Air Act is designed to protect. The agency offered a mangled interpretation of the statute that, despite two decades of Supreme Court precedent, relieves it of any obligation to curb climate-changing pollution. Its regulatory analysis minimized vehicles’ contribution to that pollution, exaggerating industry costs, and ignored massive fuel savings for consumers. In a sharp break from decades of practice, EPA simply stopped tabulating the deaths and illnesses from these vehicle emissions. EPA will have to explain how its one-sided statutory interpretation and regulatory analysis can be squared with its Clean Air Act obligations to care for the health and welfare of the public, not just the regulated industry.

In American Lung Association v. EPA (the lower court case leading to West Virginia), the D.C. Circuit ruled that EPA must consider the impact on the health and well-being of the public when delaying compliance dates. “Control of emissions from existing sources before they harm people and the environment is the central purpose of Section 7411(d) of the Clean Air Act. Yet when it deferred the compliance deadlines, the EPA did not even mention the need for prompt reduction of those emissions or the human and environmental costs of its substantial new delay.” 985 F.3d 914, 992 (D.C. Cir. 2021). That part of the American Lung decision was not affected by the Supreme Court’s decision in West Virginia.

It is widely believed that the Trump administration expects to lose the endangerment case in the D.C. Circuit and is pinning its hopes on the Supreme Court’s reversing or bypassing Massachusetts v. EPA, 549 U.S. 497 (2007), which held that the Clean Air Act gives EPA the authority and responsibility to regulate greenhouse gases. But there is more than one precedent standing in the way. The Court has followed Massachusetts in three decisions since then: American Electric Power v. Connecticut, 564 U.S. 410 (2011), Utility Air Regulatory Group v. EPA, 572 U.S. 302 (2014) and West Virginia, which was decided as recently as 2022 by the current Court majority. The Court has also twice denied petitions for certiorari challenging the endangerment finding, most recently in 2024. While Utility Air and West Virginia impose some limits on how EPA may regulate greenhouse gases under specific sections of the Clean Air Act, all four Supreme Court cases affirm EPA’s basic authority to curb these climate-changing pollutants under that law. That is a lot to undo.

If the current endangerment case eventually comes before the Court, I hope Justice Gorsuch will remember his concern for the landowners harmed in Atlantic Richfield. There, at least it could be said that the federal regime offered those landowners some protection. Here, however, EPA is expressly and defiantly denying any duty to regulate climate-changing pollution. That would leave the millions of Americans completely unprotected from the increasingly severe effects of that pollution. What of their liberty?

David Doniger is a Senior Attorney and Strategist for the Natural Resources Defense Council. He is co-counsel in the American Public Health Ass’n v. EPA case discussed here.