Notice & Comment

Does “Textualism” Really Prevent “Judicial Activism”?  A Response to Prof. John McGinnis, by David Doniger

An essay by John McGinnis, “The Rise and Fall of Chevron,” recently caught my eye. McGinnis, now a professor at Northwestern, writes that as a summer legal intern he assisted Deputy Solicitor General Paul Bator in writing the government’s brief in Chevron U.S.A. v. Natural Resources Defense Council back in 1983. Though we’ve never met, I felt a certain kinship, since I briefed and argued the case for NRDC opposite Bator 40 years ago tomorrow. 

It turns out, however, that as the Supreme Court weighs reversing or changing Chevron, McGinnis and I disagree as much now as we did then. 

McGinnis’s essay implies that Chevron deference was a corrective to liberal judicial activism in the 1970s. Actually, as I’ll show, the proximate cause of the Chevron case was conservative judicial activism. 

McGinnis says it is safe to reverse Chevron now because a judiciary committed to “textualism” and “originalism” can be trusted to demonstrate modesty and eschew activism. Given the aggressive recent behavior of purportedly textualist judges and justices, that’s rather hard to accept.  

Initially, there was broad agreement from conservative judges, scholars, and advocates – including Kenneth Starr, Lawrence Silberman, and Antonin Scalia – that Chevron represented a salutary neutral principle for judicial review of regulatory decisions. But today the Federalist Society and the many legal foundations backed by funders hostile to almost all forms of government regulation have reshaped their judicial philosophy. Now they see reversing Chevron as key weapon in their battle to enfeeble “the administrative state.”

Let me elaborate these points.

A Look Back at Chevron’s Origins

McGinnis is correct that the 1970s were a period of judicial activism and inventiveness in the rapidly evolving field of administrative law, especially on the D.C. Circuit. But I disagree with his implication that ‘70s-era activism was generally tilted in a liberal direction. In the cases that led to Chevron, it was conservative activism that got the D.C. Circuit into trouble.

To see that, we need to review the three D.C. Circuit cases leading up to Chevron. All three interpreted the same statutory term, “stationary source,” which was used in three different parts of the Clean Air Act. The first decision would pass any textualist’s test today. The second one is where the activist turn was taken – but by a conservative judge. The third one – the case actually reviewed in Chevron ­­­­– sought merely to apply a policy-driven distinction already drawn by the second decision.

“Stationary source” is the thing to which the Clean Air Act’s pollution control requirements apply. The 1970 Act defined that term as “any building, structure, facility, or installation” that emits air pollution. For members of the public and Members of Congress alike, the plain meaning – you might now say the “original public meaning” in 1970 – of those terms was clear: they meant the discrete items of industrial equipment, large or small, that emit pollution – things like boilers, blast furnaces, petroleum refining equipment, storage tanks, etc.

It was only later that clever lawyers came up with a strategy, called the “bubble” concept, for big new industrial projects to evade those standards. The trick was to redefine “stationary source” to mean a “combination” of buildings, structures, facilities, or installations – in other words, as a whole industrial plant. If a company paired building a large new furnace or boiler with retirement of some old equipment so that the whole plant’s pollution didn’t increase, then the new project would escape the stringent pollution controls the statute intended new industrial development to install.

In ASARCO v. EPA, a D.C. Circuit panel led by Judge J. Skelly Wright (a liberal) made short but “textualist” work of this argument. “The regulations plainly indicate that EPA has attempted to change the basic unit to which the [New Source Performance Standards] apply from a single building, structure, facility, or installation—the unit prescribed in the statute—to a combination of such units. The agency has no authority to rewrite the statute in this fashion.” 

The wrong turn came in the next case, Alabama Power Co. v. CostleJudge Malcolm Wilkey (a conservative) addressed the source definition in the permitting program Congress adopted in 1977 amendments to protect the still-clean areas of the country, called “prevention of significant deterioration” (PSD). 

Differing from ASARCO, Wilkey posited that for the PSD program the terms “facility” or “installation” could be read to mean whole plants. He reasoned that the “purpose” of the PSD program was different from the purpose of the NSPS program at issue in ASARCOpreserving current air quality rather than improving it. On this policy-based distinction, he found it appropriate to allow the “bubble” concept in the PSD program.  

The third case, NRDC v. Gorsuch, concerned another permit program Congress added in 1977, for areas with the most polluted air (“nonattainment” areas). Although progress had been made, the 1970 law’s deadlines for meeting health-based standards had passed unmet in areas where more than 100 million people lived. The 1970 law barred the construction of any new sources in such areas. The 1977 amendments allowed construction to continue in such areas, but only under the Act’s most stringent pollution-control conditions.

When the deregulatory-minded Reagan administration took office, the EPA administrator (Anne Gorsuch, mother of the current justice) adopted the same “bubble” approach as in the PSD program. This reduced the number of industrial projects subject to the Act’s most stringent pollution requirements in polluted areas by 90 percent.

In our case, a panel led by then-Judge Ruth Bader Ginsburg ruled in NRDC’s favor on the “program purpose” distinction already created by Judge Wilkey in Alabama Power. The two prior decisions “establish[ed] as the law of this Circuit a bright line test for determining the propriety of EPA’s resort to a bubble concept.” EPA could use the bubble concept in programs intended just to prevent pollution increases, but not in programs to reduce emissions, including the nonattainment program. 

When the case reached the Supreme Court, NRDC made the “textualist” argument (what would later be called a Step 1 argument) that the statute was unambiguous and did not permit bubbling. In McGinnis’s lingo, NRDC was applying ”right answer formalism” and elucidating the statute’s “original public meaning.” 

The Deputy Solicitor maintained that Congress meant to leave room for the evasive bubble concept. His argument relied heavily on a passage of legislative history noting that the 1977 nonattainment provisions represented a compromise between pollution control and economic objectives. In our view, this passage simply described the balance between those objectives that Congress itself had crafted in the statutory text. It did not delegate any authority to EPA to shift that balance further against pollution control and in favor of development.

As demonstrated by Prof. Robert Percival, the papers of Justice Blackmun show that in conference the seven justices who took part in the argument were closely divided. Chief Justice Burger and Justices Brennan and O’Connor voted to affirm (though O’Connor later recused after inheriting stock in litigating companies). Justices White, Powell, Stevens, and Blackmun voted to reverse. Justice Stevens professed himself “not at rest,” found the arguments confusing, and said “when I am so confused, I go with the Agency.” Justice Brennan appeared ready to dissent. 

But, of course, we know how it turned out. Stevens’ main concern was to stop unelected lower court judges – liberal or conservative – from imposing their policy views over those of the administering agencies politically accountable to the president and Congress. The other justices united around that view. The specific arguments over whether Congress had expressed a clear intent on the source definition got, in my view, reduced to second place and muddled. 

Stevens thought his two-step Chevron test was simply restating decades of precedent on deference to administrative agencies. Dozens of Supreme Court decisions over the preceding century emphasized the respect the courts should give to the legal interpretations of agencies Congress charged with carrying out its laws. Stevens focused on reinforcing those precedents’ key doctrinal point: that unelected judges should not feel free to override the reasonable policy judgments of the political branches.

In the four decades since Chevron, Steven’s formulation has been applied in thousands of decisions. It has also guided Congress’s drafting of hundreds of new laws. 

Relentless Look Ahead

But fashions change. Fast forward to last month’s arguments in the (appropriately named) Relentless case. It is pretty clear that the Court’s current majority intends to change Chevron, though how dramatically is still in doubt.

McGinnis, who favors outright reversal, argues that today’s proponents of textualism, originalism, best reading – or in his seemingly new phrase, “right answer formalism” – can be trusted not to reintroduce judicial activism or to impose their policy views on the political branches. But there is simply too much contemporary evidence of judicial activism already being aggressively deployed to undercut the objectives of environmental and other remedial legislation adopted in the ‘70s. 

Consider, for example, Justice Alito’s decision in Sackett v. EPA, which dismisses wetlands loss as mere “moving dirt” and dramatically cuts back the scope of the Clean Water Act’s protections. Consider also recent dismissive pronouncements by Justice Gorsuch about “old laws.” In the COVID shadow docket case, National Federation of Independent Businesses v. Department of Laborand in West Virginia v. EPA, Justice Gorsuch opines that laws like the Occupational Safety and Health Act and the Clean Air Act intrude too much on the “liberty” of those who would be regulated. 

But what about the liberty of those laws’ intended beneficiaries? The liberty interest in not losing one’s life or health from avoidable COVID exposure or a corporation’s pollution?  The liberty interests of those a law regulates and those it benefits are both valid. When these interests conflict, say, because protecting health imposes costs, it is the job of the political branches to balance the competing interests. Doing so is quintessentially policymaking. It is a task for the politically accountable branches, not the unelected judiciary. 

Far from McGinnis’s vision of judicial modesty, the current Supreme Court majority is robustly flexing its muscles to override the political branches. As Justice Kagan put it in Sackett, “[In West Virginia], the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.”

I’m not saying Chevron was perfect, either as initially articulated or as it has developed over the last 40 years. NRDC’s amicus brief in the current cases suggested the Court could admonish the lower courts to struggle harder at Step 1 before defaulting to Step 2 and deference. Solicitor General Prelogar made this point at argument. It was odd to me to hear Justice Gorsuch say “haven’t we done that, like, 15 times?” when I can’t think of one such Supreme Court decision. 

Our brief cautioned against turning judges loose to resume the D.C. Circuit’s old habit of imposing judges’ policy views over the considered views of the politically accountable branches. To be sure, courts must enforce unambiguous statutes. And they must ensure that agencies reasonably explain and justify their policy decisions, after thoroughly considering public comment. 

But it is folly to think that the search for “right answers” or “best readings” through “textualism” insulates today’s judges from imposing their own policy biases any better than in the D.C. Circuit’s source definition cases. In City of Arlington, Tex v. FCC, Justice Scalia saw where this would lead: “The excessive agency power that the dissent fears would be replaced by chaos.”

If the Supreme Court buys the most aggressive calls for reversing Chevron advanced by the advocates behind Relentless, we are in for a new era of judicial activism that could further undermine generations of laws Congress enacted to protect ordinary people from harms inflicted by polluters, purveyors of unsafe food, operators of dangerous workplaces, economic fraudsters, and many others. McGinnis’s arguments are thin cover for such outcomes.

The Court should not go that far – and it may not. But the fact that it is even considering doing so makes me very afraid.

David Doniger is a Senior Attorney at the Natural Resources Defense Council.

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