Justice Sotomayor’s Two Greatest Commandments of Statutory Interpretation

Posted on January 23, 2018 by Robert Brubaker

I expect to see many brilliant ACOEL blog posts (from members that unlike me are Clean Water Act oracles) on the Supreme Court’s decision in National Association of Manufacturers v. Department of Defense et al., No.16-299 (January 22, 2018).  That decision holds that the district courts rather the circuit courts have initial jurisdiction to review EPA’s action in promulgating the Waters of the United States (WOTUS) rule.  I write to comment briefly on one aspect of the opinion: what it teaches us about statutory interpretation.

The field of environmental law is comprised of an exceptionally abundant amount of statutory law (in contrast to, say, antitrust law at the other extreme).  Environmental practitioners are continuously confronted with issues of statutory interpretation, often of incredible difficulty.  What jumps out at me from the unanimous WOTUS opinion, authored by Justice Sotomayor, is the clarity of articulation of the two greatest commandments of statutory interpretation.  The first commandment is that the statute’s plain language is of paramount importance to the correct interpretation, transcending all other considerations.  The second commandment is that context and structure are the most important guides to the correct interpretation when the statutory text is insufficiently clear.  We are well-advised to not overlook or overcomplicate the two most basic rules of statutory construction.

Another thing jumps out at me from Justice Sotomayor’s opinion for a unanimous Court.  To my knowledge, it is the first federal appellate court decision since 1984 involving an EPA interpretation of its enabling legislation, in a notice and comment rulemaking, that does not cite Chevron v. NRDC.

Even the irrationality of a bifurcated judicial review scheme, and the compelling interests in quick and orderly resolution of rulemaking disputes, in judicial efficiency, in avoiding conflicting outcomes in district court cases brought as late as six years after the claim accrues – all ably argued by EPA – were not enough to overcome the two greatest commandments of statutory interpretation.



Comments (2) -

Ted Garrett United States
1/23/2018 6:51:01 PM #

See Sackett v. EPA, 132 S. Ct. 1367 (2012), which similarly does not cite Chevron.  The Chevron doctrine has been in decline for some time.  

Ted Garrett United States
1/23/2018 7:03:01 PM #

It is also worth noting that the issue for the court was jurisdiction rather than a question whether the agency's regulations were consistent with the Clean Water Act.  For that reason, perhaps, the brief for federal defendants did not cite Chevron.  See:
www.scotusblog.com/.../16-299-ts.pdf

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