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Wednesday, April 01, 2009

Does Scalia abandon textualism in Entergy Corp v. Riverkeeper?

I think so. If I am right, then Entergy Corp, handed down today, is a significant defeat for textualism at the hands of its most zealous proponent.

The issue in Entergy Corp was whether the EPA could permit power plants to abstain from using the most environmentally safe "cooling water intake structures" on the grounds that the costs of these structures greatly exceeded their environmental benefits. The relevant statutory language of the Clean Water Act provides that the power plants must "use the best technology available for minimizing adverse environmental impact.” 33 U. S. C. §1326(b). Other provisions of the Act explicitly provide that the EPA can compare costs and benefits when defining the "best" technology that industry must adopt. The absence in section 1326(b) of any reference to cost-based reasons to abstain from imposing the best available technology, therefore, would seem to be a good textual reason to bar the EPA from reducing industry's obligations when the costs of technology exceed the technology's economic benefits. Expressio unius est exclusio alterius, right?

Nope: Justice Scalia abandons this textual argument in favor of Chevron deference. He reasons that the expressio unius argument, taken to its logical extreme, would require the EPA to impose billions of dollars in safeguards to spare the life of a single crab from being sucked into an intake pipe -- a drastic consequence that even Riverkeeper, Inc. would not endorse. "[I]f respondents’ and the dissent’s conclusion regarding the import of §1326(b)’s silence is correct," Justice Scalia reasoned, then "it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the “cost-effectiveness” and “feasibility” analysis that the Second Circuit approved, that the dissent would approve, and that respondents acknowledge."

It is true that textualism might have such drastic consequences -- but so what? Pereat Mundus, Fiat Text: If the text is really unambiguous, then a fall-on-your sword textualist would not get past "Step 1" Chevron analysis. Justice Scalia is famous for arguing in his 1989 Duke Law Journal lectures that, as a textualist, he would be more reluctant to find statutory ambiguity sufficient to get past Chevron Step 1 than mushy purposivists. In his dissent last term in Begay v. United States, 128 S. Ct. 1581 (2008), Justice Scalia even hinted that purposivists were wimps who took “ever-ready refuge from the hardships of statutory text.” An uncharitable reader might suspect that the old crusader for textualism has gotten too soft to face up to those hardships himself.

Of course, textualists observe the Absurdity canon (although John Manning argues that they oughtn't). But why is it absurd to demand that the EPA spare a few more percentage points worth of river organisms by imposing $3.5 billion in costs on power plants? If the snail darter can defeat the Tellico Dam in the name of text, then why cannot a few extra millions of crustaceans and fish that would otherwise be sucked into utility intake pipes defeat those utilities' river-sucking cooling systems? I did not see an answer to this question in Justice Scalia's majority opinion.

Posted by Rick Hills on April 1, 2009 at 10:40 PM in Rick Hills | Permalink


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"I did not see an answer to this question in Justice Scalia's majority opinion."

Why is the opinion inconsistent with textualism? It seems clear that the opinion is hewed to the meaning of the word "best"; see slip. op. at at 8 ("In common parlance one could certainly use the phrase“best technology” to refer to that which produces a good at the lowest per-unit cost, even if it produces a lesser quan-tity of that good than other available technologies.").

By interpreting the statute using "common parlace," rather than "underlying spirit blah blah blah," this would seem to be a rather straightforward application of Scalia's textualist methodology, unless one believes that "textualism" means "blind literalism."

Posted by: andy | Apr 2, 2009 1:51:51 AM

"Why is the opinion inconsistent with textualism?"

The reason is that the opinion reads "best technology" entirely out of textual context. If the statute referred only to "best technology", without more, the Justice's invocation of "common parlance" to introduce cost-benefit considerations might be reasonable. But the statute does say more. It requires that plants "use the best technology available for minimizing adverse environmental impact." The last four words mean that "best" is not to be taken in its common-parlance sense, but rather in a particular and narrow sense: the best means of minimizing adverse environmental impact, period. If Congress had wanted the statute to permit cost-benefit balancing, they certainly could have, as other statutory provisions illustrate.

Posted by: Dave | Apr 2, 2009 2:35:13 AM

Dave-- it sounds like, if anything, that what happened was a misapplication of textualism. Scalia at least purports to apply a textualist method, so I don't read the opinion as an abandonment of that method.

Posted by: andy | Apr 2, 2009 3:15:45 AM

I think Scalia concurred in the judgment in Begay. Arguably, he wiggled out of the constraints of statutory text even in that case. He declined to find drunk driving to be a crime of violence, applying a statute that defined as violent any crime that posed a "serious potential risk of physical injury" to others.

Posted by: Alice Ristroph | Apr 2, 2009 7:37:11 AM

Andy and Dave --

As I noted in my initial post, the specific textualist flaw in Justice Scalia's opinion is that he does not (in my view, of course) provide a textualist rejoinder to the expressio unius argument presented by Justice Stevens' dissent. The textualist argument regarding the meaning of the term "best" identified by Andy might be persuasive absent this expressio unius argument. The difficulty is that other provisions of the statute ALSO use the term "best" but couple that term with an express reference to costs and benefits as the measure of what is "best." Given that section 1326(b) does NOT contain these express references to costs and benefits, the natural textualist implication is that the term must be defined without reference to such considerations.

Justice Scalia's only response to this expressio unius argument is that the negative implication of those other references to costs and benefits leads to an absurdity. As John Manning has noted, arguments from absurdity are not really textualist arguments. Moreover, as I observe, insisting on total elimination of environmental harms regardless of costs may be foolish, but it is not "absurd" in the classic sense.

In order to make a textualist case for Justice Scalia's argument, therefore, you guys need to do something about the expressio unius problem. Suggestions? (I'm curious: I may teach this case in Administrative & Regulatory State next Spring).

(My own best effort to resurrect Justice Scalia's argument: Those other references to costs and benefits serve the purpose of REQUIRING EPA to consider costs and benefits. The silence of section 1326(b), therefore, gives EPA the OPTION of considering costs and benefits. The expression of one requirement is the exclusion of the other requirement -- but it need not imply a further requirement NOT to consider costs).

Posted by: Rick Hills | Apr 2, 2009 7:37:32 AM

Yes, Professor Ristroph correctly catches my mistake: Scalia concurred in Begay.

To be fair, Justice Scalia invokes lenity in Begay as the extra-textual principle. He is, of course, famous for using lenity in the cases construing section 924(c)(1) in Smith v. United States, 508 U.S. 223, 240 (1993).

But why does Justice Scalia abandon the ejusdem generis canon in Begay? He refuses to narrow the residual clause by looking for the common spirit of the preceding enumeration. That seems anti-textualist to me: If the text is canonically clear in Begay and Entergy, then is not Justice Scalia barred from invoking either Chevron or lenity?

Posted by: Rick Hills | Apr 2, 2009 7:43:58 AM

Rick, I think your 7:37AM comment accurately describes Scalia's attempt at responding to the expressio unius argument: express cost-benefit standards elsewhere in the statute doesn't necessarily imply a prohibition on any consideration of cost where there is silence.

Scalia's ruling also turns on the use of the word "minimizing." Congress required minimization, which implies a matter of degree, rather than elimination as it has elsewhere. Accordingly, there is room for agency discretion, and the EPA's consideration of cost is 1) not textually forbidden, and 2) not unreasonable. (This seems particularly true where no one--not respondent, the dissent, or the Second Circuit--actually advocated a complete prohibition on the consideration of cost.)

Also, is the text of a statute really unambiguous once you start applying canons? Or does Chevron deference give the agency the first crack at that? (I tend to think the use of Chevron deference is the real abandonment of textualism.)

Relatedly, is Scalia really the most zealous proponent of textualism? Justice Thomas and Judge Easterbrook are more consistent, if less vocal, textualists.

Posted by: JP | Apr 2, 2009 11:34:10 AM

In order to make a textualist case for Justice Scalia's argument, therefore, you guys need to do something about the expressio unius problem.

Rick, I think you are arguably making too much out of Scalia's decision to not apply the expressio unius canon. To a textualist, "Canons of construction need not be conclusive and are often countered, of course, by some maxim pointing in a different direction." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115
(2001) (Kennedy, joined by REHNQUIST, C.J., and O'CONNOR, SCALIA, and THOMAS, JJ).

My impression is that you read a rejection of the expressio unius canon as an abandonment of textualism, a reading which I do not believe is correct. To the contrary, I think Scalia's approach, i.e., the use of the "common parlance" canon, coupled with the Chevron canon, to trump the expressio unius canon, is perfectly consistent with the textualist approach.

There was a Bankruptcy case from the mid 80's that Scalia joined which I thought was truly an abandonment of textualism. Also,the FDA "drug" case seems to be a decent example of Scalia joining an opinion that arguably isn't true to textualism. But Entergy Corp doesn't strike me as remarkable, and instead looks like perfectly reasonable application of the textualist method to statutory interpretation.

Posted by: andy | Apr 2, 2009 1:42:29 PM

If we are going to examine "textualism" it might help to try to define it, and I submit a working definition of "adhering to the words chosen by the lawgivers even if they chose words that do not convey what they meant". It is ignoring the historical background, and taking a literalist approach to interpretation, holding the lawgivers responsible for their words even if we can find evidence those words do not represent what they understood them to mean. I would contend that doctrine is intrinsically untenable, because there are almost always differences between the meanings words have for their authors and for their readers. Each of us, in trying to communicate, uses mental models of the world that include submodels of the mental models of other individuals. Unless one can interrogate the authors, one has to look to background information on their meanings. In a sense, one needs to approach interpretation as though the communication was written in a foreign language. That is especially appropriate for the Constitution, which was written in a language deceptively similar to our own, but not the same.

But a consistent textualism must acknowledge that statutes must be authorized by the Constitution, and therefore that the text of a statute cannot be properly interpreted without returning to the provisions of the Constitution that authorize it. What provisions of the Constitution authorize the regulations involved in this case? It doesn't work to merely refer to some court precedent, because textualism is in fundamental logical conflict with binding stare decisis.

So Justice Scalia did indeed abandon textualism (as he has often done before), not so much in the way he interpreted the statute as in the way he treated the statute as constitutional. It is not constitutional, at least as applied in this case.

Textually speaking, the power to regulate commerce among the states is only the power to prescribe the modal attributes of the tangible commodities the title and possession of which are transferred from a seller in one state to a buyer in another. The power to regulate the activities of those engaged in interstate commerce cannot be logically inferred from the power to regulate the commodities themselves, as "necessary and proper". Environmental impacts are not "commerce", regardless of how many judges have said otherwise. If you want Congress to have the power to regulate environmental impacts then amend the Constitution to confer that power. I might support such an amendment if it were carefully drawn, but until it is ratified, I am duty bound to regard legislation to do that as a usurpation.

Posted by: Jon Roland | Apr 2, 2009 2:09:50 PM

The statute and regulations at issue address technology standards for water intake cooling structures. Are you really saying that water intake cooling structures are not "tangible commodities the title and possession of which are transferred from a seller in one state to a buyer in another"? Why should we consider this regulation of "environmental impacts" and not "regulation of the modal attributes of the tangible commodities...." Modal has more than one meaning, so can you please clarify how you're using it?

Posted by: Annecoos | Apr 2, 2009 4:08:20 PM

Responding to Annecoos:

The statute and regulations are embedded in a larger statutory structure that requires the intake cooling structures be used, not just what can be sold from one state to another. Otherwise the users of them could decline to buy any at all or make some substitute locally.

However, I would also say that "best available technology" is void for vagueness. How best? I'm a computer professional and in that field "best" means "most cost-effective", not just "most effective". It is essentially delegating a lawmaking power to some administrator, in violation of the nondelegation doctrine, which is textually mandated. Valid legislation has to be much more specific than that, as well as authorized by the Constitution.

For the purposes of commerce regulation, modalities are things like packaging, labeling, scheduling, measure, etc. To regulate meant to "make regular", and did not include prohibition of all modalities. Some always have to be permitted.

Posted by: Jon Roland | Apr 3, 2009 4:22:43 AM

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