Is a Textualist Approach to Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better than Judicial Literalism

I. Introduction Since the late 1980s, there has been a vigorous debate among both judges and academics about the appropriateness of a textualist approach to statutory interpretation and of the use of legislative history.1Justices Scalia and Thomas, the leading proponents of textualism on the Supreme Court, have frequently written or joined decisions that anger environmental advocacy groups.2 In City of Chicago v. Environmental Defense Fund,3 however, their textualist approach to statutory interpretation resulted in a victory for the Environmental Defense Fund. As a result, Professor Lazarus, who argued the City of Chicago case before the Supreme Court on behalf of the Environmental Defense Fund,4 and Ms. Newman, who worked with Lazarus on the case,5 contend that, contrary to the expectations of environmentalists who believe that most judges associated with textualism are hostile to environmentalism, a plain meaning approach to statutory construction is more likely to result in victories for environmentalists because environmental statutes on their face usually contain broad aspirational language and no exceptions.6 Most often, it is industry rather than environmental groups that seek exceptions from a statute's text by trying to find flexibility in its legislative history, "the content of which tends to be the product of hard-fought and lengthy debate among committee staff members and interest groups."' Professor Lazarus and Ms. Newman concede that in some cases a statute's legislative history is more favorable to environmental plaintiffs than its text, but they conclude that a textualist approach to statutory construction "is likely to inure frequently (but not exclusively) to the benefit of environmental plaintiffs."18 This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental issues. Part IV provides some counterexamples that show it is not clear that a textualist approach will lead to more victories for environmental plaintiffs. More importantly, textualism does not provide the best method to resolve the frequent conflict in environmental statutes between protecting the public health and limiting the cost of regulation, especially because textualists tend to slight the balance struck by the environmental agency. Judges applying a textualist approach often read environmental statutes narrowly to limit the authority of environmental agencies. Moreover, the textualist method is sufficiently indeterminate that a textualist judge could have decided even the City of Chicago case either for or against environmental advocacy groups. Even if textualist statutory interpretation resulted in more victories for environmental advocacy groups, the tendency of textualists to place so little value on the interpretations of the environmental agencies that have greater practical experience with the underlying issues raises serious questions about whether textualism is the best way to decide environmental policies. In addition, Professor Lazarus and Ms. Newman suggest that courts should ignore a statute's legislative history because such material is more likely to contain pro-industry provisions than the text.9 Even assuming they are right, Part V demonstrates that interpreters ought to consider a statute's legislative history because such material is often essential in understanding Congress's intent in enacting a bill. Part VI explains that a fundamental problem with textualism is that it downplays the role of administrative agencies in interpreting complex regulatory statutes. Thus, textualist judges too often ignore the spirit of the Supreme Court's decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.," which emphasized that agencies generally are more competent at interpreting complex regulatory statutes than are generalist Article III judges, and as a result, these textualists fail to give sufficient deference to the expertise of environmental agencies. …