Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes. In 2020, the Environmental Protection Network, a coalition of former Environmental Protection Agency (EPA) employees from across the political spectrum, issued a report identifying the priorities for resetting the course of EPA. At the top of the list of priorities, the group urged EPA to “reaffirm its commitment to fully protect public health and the environment.” Even if EPA were to follow that advice and sought to aggressively interpret and enforce the environmental laws to achieve their enacted purposes, the agency could be thwarted by the judicial trends outlined above were its actions challenged in court. Congressional action may be required to counter these trends and reinvigorate the federal environmental laws. The very simple, straightforward tool that Congress could use to reinvigorate the laws would be a statutory directive. Congress could amend the Clean Water Act, Clean Air Act, RCRA, Superfund, and the Endangered Species Act to explicitly provide that the laws should be interpreted to carry out their enacted purposes to protect public health and the environment. Through such statutory directives, Congress could send a clear message to courts that it remains committed to the goals articulated in the environmental laws. Textualist judges would find it difficult to ignore the statutory purposes when interpreting the environmental laws, as the text of the laws would require the laws to be interpreted to advance those purposes. Similarly, judges who ignore Chevron to avoid deferring to an agency’s environmentally friendly interpretation would be unable to reject the agency’s position through their own statutory interpretation without addressing the statutory directive in the law requiring an interpretation of the law to carry out its public health and environmental purposes. Although Congress has underutilized statutory directives, state legislatures routinely enact them, and other academics have advocated for the creation of Federal Rules of Statutory Interpretation or other tools to standardize statutory interpretation by courts. While some commentators have raised separation of powers concerns regarding statutory directives, many commentators assert that courts do not have a monopoly on statutory interpretation and that the statutory interpretation rules adopted by courts are federal common law rules that can be adopted or amended by Congress. Accordingly, a directive like the one proposed in this Article that focuses on a limited number of statutes and only directs courts to interpret the statutes consistently with enacted purposes provisions in the statutes should be consistent with Congress’s Article I powers.
Stephen M. Johnson
Whither the Lofty Goals of the Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?,
49 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol49/iss2/1