“THE WATERS OF THE UNITED STATES”–TEXTUALISTS AGAIN SHOW THE ERROR OF THEIR WAYS

Why is it that environmental cases regularly expose the errors of the so-called textualist approach to constitutional interpretation by the Supreme Court?  The most recent example is Sackett v. EPA, decided last term, which was about the Clean Water Act.  Together with the Clean Air Act, it was one of the great foundational environmental statutes enacted during the Nixon Administration, and over time both statutes played tremendous roles in allowing our air and water both to be cleaned of many pollutants. 

Sackett concerned the jurisdictional scope of the statute.  Apparently the Sacketts had purchased property near a large lake, and started to fill it with dirt, because it was a lot that included wetlands which they wanted to fill in to build a house.  The wetlands on their lot drained into a ditch, which in turn drained into a nearby stream, which in turn drained into the lake.  The Army Corps of Engineers wanted the Sacketts to obtain a permit.

The interpretive problem for the Supreme Court was to decide whether the Sacketts’ wetlands property fell within the “waters of the United States.”  Everyone agreed that the waters of the United States included things like large rivers and lakes that could be navigated between states (and thus constituting interstate commerce).  The question was how much further than that could federal water pollution regulation extend.  The Court acknowledged that the Act had long been interpreted to include wetlands “adjacent” to “waters of the United States,” and the question was what does “adjacent” mean.

The problem that the textualists faced, of course, is that the word “adjacent” is not fully self-defining.  One by one, the Court rejected several proposed tests.  First, it rejected the “significant nexus” test, in which point source and non-point source runoff of pollutants could impact more significant bodies of water.  Second, it rejected a test that allowed water flowing from ditches and drains that eventually emptied into distant bodies of water to be considered “adjacent.”  Third, it rejected a test which allowed unconnected bodies of water to be “adjacent” if those bodies were “related,” for example if they were used by migratory birds in a related kind of way (for example if a migratory bird on a particular migration route was indifferent between stopping at one nearby pond or another to rest, feed and drink).

But why couldn’t at least the first two tests be utilized to find the bodies of water to be “adjacent?”  If the concern is the ability to regulate pollutants affecting the “waters of the United States,” can’t “nearby” pollution sources be considered to be “adjacent?”  Ahh, but that introduces a POLICY element into the possible solution of the interpretive problem, which is anathema to textualists, because that would require them to acknowledge what they are really doing, which is putting their personal policy preferences on the scale.  Development, good.  Unconstrained property ownership rights, good.  Regulation of those rights to constrain water pollution, bad.  The Court isn’t making a neutral, values-free deus ex machina construction of the objective and unyielding meaning of the text.  It’s making a policy judgment.  It’s time for so-called textualists to admit the truth.

What the Court (really, just 5 justices) settled on as a test is the requirement that there be continuous surface continuity between the wetlands sought to be regulated, and the larger navigable “waters of the United States” for regulatory jurisdiction to exist under the Clean Water Act.  One can easily conjure up scenarios where that would permit more pollutants to seep or flow from a wetland to a more substantial body of water nearby, so the result of the case is not a victory for environmentalists.

Last year, at the end of the October 2021 term, the Supreme Court decided West Virginia v. EPA, about which I also blogged, where the Court adopted a similarly misguided textualist approach.  The Clean Air Act requires the EPA to adopt “the best system of emission reduction.”  The Court concluded that each individual power plant emitting carbon dioxide was a separate “system,” so the broader environmental goals of the EPA’s Clean Power Plan were invalidated.  Can’t the entire inter-related electricity grid be considered a “system”?  Isn’t the atmosphere and environment as a whole an overall “system”?  The word “system” is no more self-defining than the word “adjacent.”  You need to define either word in relation to the structure, purposes and policies of each statutory scheme as a whole.  Sorry textualists, but that’s the truth.

Why didn’t the Court defer to the expertise of the Army Corps of Engineers on what it means to be “adjacent” to the “waters of the United States?”  Why didn’t the Court defer to the expertise of the EPA in the Clean Air Act case?  Oh, right, we’re about to do away with Chevron deference this year, in Loper Bright Enterprises v. Raimondo.  It’s a disfavored doctrine, in an era when too many reject the whole idea of deference to professional expertise in the first place.

The Court did refer, in a somewhat backhanded way, to the new “major questions” doctrine, which requires Congress to speak clearly on “major questions” if regulators are to have authority to regulate.  On its face, there is some common sense to the approach, but in fact it is just another way for the Court to put its thumb on the scale.  Congress often does not legislate completely clearly, and general standards leave discretion to regulators to whom we have previously deferred due to their expertise.  Who decides when and where in these broad areas a “question” has become “major?”

The Court did tip its hat to the underlying values it is trying to promote.  The Court noted that property rights are of constitutional dimension, and that the right to own property includes the right to use and develop it.  But longstanding regulation of land use shows that right is hardly absolute and unlimited.  The policy choices involve balancing these competing objectives, which is the essence of judging.  Yet textualists, like originalists, maintain that text drives the result.  “Don’t blame me for the result…blame Congress for passing that statutory language.”  That rationale is of course a fiction, which the Court all but acknowledged when it noted how its conception of the importance of property rights played a role in its analysis and decision.

While we all have to start our legal analysis with the text (that is what Justice Kagan meant when she said “we are all textualists now”), when the text is not fully self-defining, which is often, we have to interpret the language by looking at its placement in the overall statute, the purpose of the underlying legislation, the practical effects of the different possible outcomes, and the underlying policy choices at stake.  Hardcore textualists try to avoid acknowledging that.  They usually seek instead to make a decision, attribute it to the consequences of someone else’s drafting, making a policy or values choice while claiming that s not what they are doing so they can disclaim responsibility for the consequences.  It is, in short, a disingenuous approach.

So why has this “textualist” conundrum come up twice, in two consecutive terms, in environmental cases dealing with our two core environmental statutes?  Maybe because this Court is hostile to environmental regulation generally, like many Red Team members who want to ignore things like climate change.  And maybe it’s because these two decisions presage a major theme for the upcoming October 2023 term, which is putting the final nails into the coffin in which the administrative state now lies.  I’ll be blogging more about this later in September.

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