The Supreme Court and the future of environmental litigation

Statutory construction has endured a tortured evolution. Where once the Supreme Court’s use of administrative deference was both persistent and expected, such reasoning has attracted ever-increasing scrutiny in recent years. This shift became evident over the past term, in which the Court’s concerns over deferential interpretation and the dangers of the growing “administrative state” resulted in decisions that curbed regulatory power and liberated the Court to pursue its traditional duty to “say what the law is.”

By hauling up the deferential anchor, the Court has entered uncharted jurisprudential waters, embarking on a new and perhaps even more controversial voyage – choosing between text and context.

{mosads}The most significant statutory construction case of the term, indeed of the last several years, came in King v. Burwell, the most recent episode in a series of attacks against the ACA (Obamacare).  There, the Court faced seemingly clear text that mandated forfeiture of subsidies in states that refused to set up their own “exchanges” for health insurance.  Since the IRS was the federal agency charged with implementing the subsidy programs, it claimed that its interpretation was entitled to Chevron deference – a doctrine by which the responsible government agency’s interpretation is accepted because it is deemed to be “expert” in interpreting the statutes it administers.  Game, set, match – right?  The majority, led by Chief Justice Roberts, held otherwise.

The IRS has no particular expertise in designing or creating health policy, said the Court.  Since they weren’t “expert” in the area, they deserved no deference whatsoever.  But shouldn’t that have left us with the text of the law? And if so, isn’t the text controlling?

Apparently not. Chief Justice Roberts’ majority opinion found a trump card: context.  The majority, viewing the ACA “as a whole” and placing the issue against the broader backdrop of congressional intent to provide universal coverage – and not to deny it arbitrarily on mere accident of terminology – held that the overriding intent mandated coverage even if the “most natural reading” of the actual text suggested otherwise. 

So the ACA survives – not because of its text – but because, placed in context with Congress’ remedial purpose, a destructive “natural reading” must be rejected. 

In hindsight, we should have seen this coming. Justice Roberts gave us a preview earlier in the term when he joined the majority in Yates v. United States, holding that a fisherman’s decision to discard illegally caught fish did not constitute the destruction of evidence within the meaning of the Sarbanes Oxley Act.  Certainly, destroying evidence to conceal wrongdoing is illegal, but imprisoning someone for throwing away a few fish – as opposed to destroying hard drives, documents, and other records relevant to Sarbanes Oxley prosecutions – goes far beyond any reasonable interpretation of the Act. Viewed in context, fish aren’t computers or financial records. Simply because an overzealous prosecutor can frame charges within statutory text doesn’t mean it is legitimate to do so.

Is there mischief in Burwell?  Of course there is – but does it really make sense to presume that Congress intentionally inserted a “poison pill” into a comprehensive law? Or to infer that an inadvertent error in a major piece of legislation should be allowed to undermine the central reason the law was passed in the first place?  Surely it is more reasonable to effectuate a law’s purpose and intent in context, rather than to undermine a remedial statute by focusing on a single word at odds with an overarching policy goal.  At least in Burwell, the majority thought about such things, rather than putting on blindfolds and deferring to the agency’s uninformed point of view.

So what does this mean for future energy and environmental cases?  We can only hope that it means the Court will pay more attention to a substantive analysis of statutes – instead of taking deferential “short cuts” based on fictional agency “expertise.”  In the controversy surrounding the president’s Clean Power Plan, for example, one hopes that the Court will read, compare and accept a reasonable interpretation of the Clean Air Act – one which recognizes that Section 111(d) cannot, by its terms or its context, be used to regulate facilities obviously governed by a different section of the Act. Chevron deference is completely inappropriate when the agency’s interpretation is unreasonable.

The problems generated by the passage of two versions of Sec. 111(d) may or may not call for contextual analysis, but merely deferring to the EPA’s interpretation – which will, of course, support its own position as an advocate – serves only to resolve the issue without solving it.  The rule of law requires the best interpretation the judiciary can provide, not the most convenient one coined by an interested party.

It is the duty of the Judiciary to “say what the law is.”  Separation of powers is enshrined in our Constitution as a founding principle, but the Supreme Court has all too often placed a heavy thumb on the scales of justice by improperly deferring to interpretations coined by the Executive Branch.  In a real sense, separating the powers is only part of the judiciary’s responsibility – its ultimate duty is to balance them to ensure that no Constitutional branch exceeds the boundaries of its authority.

Faulk is a partner at Hollingsworth LLP, Washington, DC;  senior director of the Initiative for Energy and the Environment, Law & Economics Center at George Mason University School of Law, Arlington, Virginia.