The Preemption of State Hazardous and Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More

Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state\u27s ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court\u27s application of dormant Commerce Clause doctrine in cases involving state waste regulation. The final part of the Article surveys the options available for states wishing to limit in-state disposal of out-of-state waste

Textualism’s Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and \u3cem\u3eChevron\u3c/em\u3e

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court\u27s approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting just one year after it had famously established its deferential regime for the review of agency legal interpretations in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., held unanimously that the Corps had discretion to interpret the CWA contrary to the apparent meaning of the statutory text. In returning to the issue of the jurisdictional scope of the CWA 15 years later, the Court\u27s bare conservative majority has now interpreted the Act to have a clear textual meaning and to foreclose an agency interpretation accepted and enforced by several administrations. This Article will summarize briefly the factual background to the Court\u27s decisions in SWANCC and Riverside Bayview Homes, and then compare the Court\u27s interpretive approach to resolving the statutory issue in the two cases. This comparison will focus on the Court\u27s shift to a textualist interpretive method and the Court\u27s deviation from the principle of statutory stare decisis. The Article will then discuss how the Court\u27s textualist approach in SWANCC yields an interpretation that has no contextual legitimacy and undermines the federal regime of water pollution control. The final section of the Article examines the Court\u27s activist use of a clear statement rule in rejecting the Corps’ request for deference under Chevron. This rule has the effect of ignoring the strong evidence—the metaphorical, insistent barking of dogs—that Congress intended the broadest scope to the exercise of federal authority over the nation\u27s waters when it enacted and amended the CWA

\u3cem\u3eCommunis Opinio\u3c/em\u3e and the Methods of Statutory Interpretation: Interpreting Law or Changing Law

Interpretive methodology lies at the core of the Supreme Court\u27s persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature\u27s intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now famous for his rigid adherence to formalism. Justice Stevens rejects the formalist method, grounded as it is solely on the abstract meaning of statutory text, and employs instead the contextual, nonformalist method that seeks to interpret statutes by reference to the legislature\u27s intent and purpose. This debate about methodology is important because different interpretive results may well follow from the interpretive method that is employed. This Article provides a context for assessing the Court\u27s debate about interpretive methodology through an examination of the past and contemporary place of the communis opinio canon in cases of statutory construction. The Article begins by describing Brogan v. United States, a recent case in which Justices Scalia and Stevens debated the modern relevance of the ancient canon of communis opinio. The Court, in an opinion by Justice Scalia, employed the formalist method to reject a narrow interpretation of· a broad criminal prohibition on making false statements to federal officials. Justice Stevens, invoking the communis opinio canon in his nonformalist dissent, relied on a long-standing practice that had developed under the statute, and was accepted by the Department of Justice and several courts, to impose substantial limits on the scope of the criminal prohibition. Justice Scalia derided this resort to the communis opinio canon, contending first, that the canon simply did not apply to the interpretation of a statutory text and second, that the canon resulted in an error being adopted as law because of its wide acceptance. The second part of the Article considers the validity of Justice Scalia\u27s claim that the communis opinio canon has no proper application to the interpretation of statutes. The Article addresses the source of the communis opinio canon and a closely related canon in Coke\u27s Institutes, hypothesizes reasons for the articulation of the canons by Chancellor Coke, and considers the easy acceptance and application of the hybridized canon in early American cases. This section will show how the canon, whose value was ridiculed by Justice Scalia, was commonly accepted by American courts. The Article then considers the conventional requirements for the application of the canon and examines how effectively those requirements have constrained the use of the canon in statutory interpretation. Finally, this part of the Article considers the varying interpretive effects that courts have given to the canon when it is applicable. One of these interpretive effects, employed in two notable cases, one decided by Chief Justice Marshall and the other decided five years before the Court famously endorsed countertextual interpretive techniques in Holy Trinity Church v. United States, has been to reject the clear, determinate meaning of the statutory text and to accept instead the common practice that developed under the statute. In short, far from being inapplicable to the interpretation of statutes, the communis opinio canon has been employed by the Supreme Court to reach countertextual interpretive results. Given that the communis opinio canon has been used by the Supreme Court to present interpretations that conflict with the apparent meaning of the text, the last part of this Article considers whether a court acts properly when it accords legal significance, including a determinative effect, to communis opinio. Particular attention is given to Justice Scalia\u27s claim that communis opinio yields interpretations that have the effect of changing the law by codifying common error. This analysis initially proceeds by considering the three rationales traditionally employed for employing the communis opinio canon-strong evidence of the meaning of text, evidence of the intent of the drafters of the text, and public reliance. When it fails to account for communis opinio, a formalist court loses a valuable opportunity to place a reliable check on the autonomy of that interpretive method and undermines important reliance interests. The Article then presents a fourth rationale for the strong use of the canon: its use reflects a proper role of the court in the process of lawmaking. The Article first assumes the significance of the rule-of-law values that formalism purports to serve. Because common practice constitutes law in important ways, the communis opinio canon should provide an especially important context for interpreting statutes under the formalist or antiformalist methods. Ignoring communis opinio may yield interpretations that are inconsistent with the rule-of-law values that formalism tries to promote. The presumptive meaning that this canon should give to statutory text has strong indicia of correctness and ought to be rejected only when other textual and contextual meanings are uniform and contrary. One historically important context in which the formalist Justices have recognized the status of practice as law was the recent presidential election cases. In deciding whether the Florida Supreme Court had changed state election law when it interpreted the election statute, the three concurring Justices in Bush v. Gore, including Justices Scalia and Thomas, relied on two standards against which to gauge whether the decision had effected a change in law: variance from the text and, importantly, variance from prior practice. To be sure, the concurring opinion makes no reference to the canon of communis opinio in relying on prior practice to discern a change in law. The opinion does, however, properly accept the significance of practice in fixing the content of law. This section concludes that Justice Scalia\u27s formalist aversion to communis opinio strongly undercuts the formalist method\u27s traditional claims to legitimacy and may encourage judicial interpretations that have the effect of changing law. The Article\u27s final section discusses how the formalist aversion to employing the communis opinio canon yields erroneous decisions and undercuts the empirical value of the formalist method by increasing the costs of the legal system

Legislative Intent and Statutory Interpretation in England and the United States: An Assessment of the Impact of \u3cem\u3ePepper v. Hart\u3c/em\u3e

Statutory interpretation is the process of discerning the meaning of legislation, and U.S. law has permitted courts to find meaning through a variety of often contradictory interpretive approaches. As a result, U.S. litigants often are uncertain about the interpretive approach a court will apply to a statute, even though the choice of the interpretive approach may determine the outcome of the litigation. Until the recent decision in Pepper (Inspector of Taxes) v. Hart, English approaches to statutory interpretation were more circumscribed because English courts foreclosed the intentionalist approach. This Article considers the impact that Pepper has had on statutory interpretation in England. The second Part of the Article briefly describes the broad range of conflicting approaches to statutory interpretation that jurists now commonly employ in U.S. courts. It then contrasts the interpretive rules of U.S. law with those of English law. Part three of the Article discusses the House of Lords decision in Pepper, which abandoned the bar against intentionalist interpretation. This part shows how the House of Lords endeavored to protect English statutory interpretation from being Americanized by adopting several threshold requirements intended to ensure that courts would pursue intentionalist interpretations only in rare cases. Part four considers whether the House of Lords succeeded in placing principled limits on intentionalist interpretations of English statutes. The Article concludes that English rules of statutory interpretation have become much more like U.S. rules and that Pepper itself shows how English law can be transformed, notwithstanding the House of Lords\u27 effort to place principled, clear, and significant limits on intentionalist interpretation

Direct Liability for Hazardous Substance Cleanups Under CERCLA: A Comprehensive Approach

In enacting the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), Congress intended to impose liability for hazardous substance cleanups on all parties responsible for a site\u27s use and contamination. However, in implementing the CERCLA liability scheme, courts have issued opinions offering unclear and misguided explanations of their decisions. The author suggests that, to properly assure CERCLA\u27s proper operation, the basis for the imposition of liability must be clarified. To this end, the author examines the prescribed liability for individuals, parent corporations and secured creditors and explains the appropriate grounds for the responsibility of each

The Claims and Limits of Justice Scalia\u27s Textualism: Lessons From His Statutory Standing Decisions

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article discusses these changes and addresses how they relate to the textualist method of statutory interpretation. The current significance of textualism, which emerged after Justice Scalia became an Associate Justice of the United States Supreme Court, has led Justice Kagan, the appointee of President Barak Obama, to state that “we’re all textualists now.” The first Part of the Article briefly describes the critical role that Justice Scalia played in the emergence of textualism as a central method for the interpretation of statutes. The Article then considers the rhetoric and legal craft employed by Justice Scalia to accomplish important changes in the law of statutory standing. These changes concern the respective roles that the legislature and the judiciary play in determining who may bring claims in federal court pursuant to the Administrative Procedure Act (APA) and other federal statutes. The second Part of the Article discusses how Justice Scalia quickly and decisively reshaped the nomenclature that the Court applies to this area of the law. By changing the legal terminology from prudential standing to statutory standing, Justice Scalia framed his claim that Congress had sole authority to define the parties who had a right to bring a claim in federal court when the party has Article III standing. Locating this authority in the legislature, rather than in the judiciary’s exercise of its own prudential power, reinforced Justice Scalia’s claim that his textualist method ensured legislative supremacy and limited opportunities for judicial activism. Despite this claim, Justice Scalia’s other two changes to the law of statutory standing had the effect of constraining by judicial interpretation the scope of statutory standing relative to statutory text and legislative intent. First, Justice Scalia interpreted statutory text that was extremely broad in the legislative grant of statutory standing and intended to allow an action by any party aggrieved by a claimed government illegality to grant statutory standing only to a party who met the zone-of-interests test. Justice Douglas, writing for the Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970), identified a wholly new test for what he called “prudential standing,” a test that we know as the zone-of-interests test. Justice Douglas defined this test in order to expand the scope of statutory standing that Congress had provided when it enacted § 702 of the APA. Justice Scalia, writing for the Court in two decisions more than forty years later, pragmatically employed the ahistorical, court-contrived zone-of-interests test to limit the scope of statutory standing defined by Congress in clear statutory text that broadly provided for statutory standing. These decisions added to the legal error that Justice Douglas committed in Data Processing, this time in the service of reducing the scope of standing compared to what Congress had intended and provided in the clear language of the statute. Justice Scalia’s decisions undermine the broader scope of statutory standing defined by Congress in particular statutes. The second change in statutory standing law was that Justice Scalia, having determined for the Court that the zone-of-interests test would determine whether a party had statutory standing, concluded that the zone-of-interests test, when applied outside the APA context, necessitated a showing that the claimed illegality proximately caused the injury to the person bringing the claim. This proximate cause requirement is not found in statutory text or in legislative history. Rather, Justice Scalia decided that Congress had to be understood to have imposed a proximate cause limit when the zone-of-interests test applies and, at least for now, when the claim is not brought under the APA. This interpretive result is claimed to follow from the prescription of the legislature, rather than the prudent activism of the judiciary. Contrary to this claim of textualism, the decisions in these cases show that Justice Scalia was willing and able to be an activist judge when the text enacted by Congress did not align with his own views of good policy. The decisions in these cases show the limits of textualism and provide strong reason to doubt the claims that that the preeminent advocate of textualism made about the virtues of that interpretive method

Direct Liability for Hazardous Substance Cleanups Under CERCLA: A Comprehensive Approach

In enacting the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), Congress intended to impose liability for hazardous substance cleanups on all parties responsible for a site\u27s use and contamination. However, in implementing the CERCLA liability scheme, courts have issued opinions offering unclear and misguided explanations of their decisions. The author suggests that, to properly assure CERCLA\u27s proper operation, the basis for the imposition of liability must be clarified. To this end, the author examines the prescribed liability for individuals, parent corporations and secured creditors and explains the appropriate grounds for the responsibility of each

England\u27s Contaminated Land Act of 1995: Perspectives on America\u27s Approach to Hazardous Substance Cleanups And Evolving Principles of International Law

An important contemporary problem in environmental regulation concerns the cleanup of property that is an unfortunate legacy of the modem industrial age—acres of land affected by past inadequate disposals of toxic substances. The United States began to address this problem in 1980 with the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA establishes both a liability regime for assigning the costs of cleaning up lands contaminated by the release of hazardous substances and regulatory requirements defining how those cleanups are to be pursued. In 1995, England enacted the Contaminated Land Act (alternatively referred to as the CLA), its first effort to address comprehensively the cleanup of land contaminated by hazardous substances. England\u27s new approach to the cleanup of contaminated land was determined in part by its government\u27s view that CERCLA defined regulatory provisions that are too controversial and costly. Close consideration of the CLA should accordingly provide rich insights into an alternative approach to remediating contaminated land. In addition to providing an important perspective for reconsidering America\u27s approach to the remediation of contaminated land, England\u27s CLA also should be considered along with CERCLA in a less parochial legal context, that is in the context of international environmental law. Observers of the rapid development of international environmental law have made claims that several important principles have evolved that are broadly accepted by all nations. National legislation may therefore be examined to assess the extent to which it adheres to these purportedly generally accepted principles. The Contaminated Land Act, as well as our own national law of contaminated land cleanup, can be most profitably assessed by reference to two broadly accepted evolving principles—the precautionary principle and the polluter-pays principle. Insights can also be gained by considering the extent to which the two statutory schemes reflect in the treatment of their own citizens two evolving international law principles that govern international relations—the principles of adequate consultation and nondiscrimination. This Article will compare and contrast the CERCLA regime for remediating contaminated land with the CLA\u27s principal provisions and requirements. This discussion will be organized by reference to the four emerging principles of international environmental law

Spurious Interpretation Redux: \u3cem\u3eMead\u3c/em\u3e and the Shrinking Domain of Statutory Ambiguity

In skewering the Supreme Court\u27s recent decision in United States v. Mead Corp., Justice Scalia\u27s rhetoric is exceptional. He derides the decision as one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action. Its consequences will be enormous, and almost uniformly bad. Although Justice Scalia objects to Mead\u27s new and uncertain limits on the applicability of the Chevron doctrine, this Article will focus instead on how Mead employs a method of interpretation imputing a clear intent to Congress, and authorizes courts to discern statutory meaning without strong deference to an agency\u27s expert and political interpretation of the statute. This Article begins by briefly describing the interpretive regime defined by Chevron. That regime found in statutory ambiguity an implied delegation of lawmaking power to agencies. The Article then discusses how Mead changes that default rule to one delegating principal interpretive lawmaking power to courts in the absence of affirmative evidence of congressional intent to delegate that power to agencies. This shift resulted from an interpretive method that spuriously imputed intent to Congress. Although the Mead Court purported to accept the rule of deference dictated by Congress, the Court itself was the source of the imputed intent. This Article concludes by discussing how Mead\u27s interpretive approach is similar to the approach in an important and growing line of Rehnquist Court decisions loading the interpretive dice in favor of results not clearly intended by Congress, and thereby arrogates to the judiciary lawmaking power better exercised by the legislature or the agency