Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism

Washington and Lee Law Review, Feb 2019

This Article addresses the history of the Supreme Court’s interpretation of the Clean Air Act, which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism—the custom of giving statutory goals weight in interpreting statutes—toward one that relies more heavily on textualism during this period. At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute’s meaning as adapt a statute to contemporary circumstances.

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https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4625&context=wlulr

Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism

Half a Centur y of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism Brandon T. Metroka 0 1 2 3 4 5 0 David M. Driesen, Thomas M. Keck, and Brandon T. Metroka, Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism , Textualism, Dynamism, and Activism, 75 Wash. & Lee L. Rev. 1781 (2018) , https://scholarlycommons.law.wlu.edu/wlulr/vol75/iss4/3 1 Part of the Environmental Law Commons, Judges Commons, Jurisprudence Commons, Legislation Commons, and the Supreme Court of the United States Commons 2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 3 David M. Driesen Syracuse University College of Law 4 University of the Incarnate Word 5 Thom as M. Keck Syracuse University Maxwell School of Citizenship and Public Affairs Recommended Citation - Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism David M. Driesen* Thomas M. Keck** Brandon T. Metroka*** I. Introduction.................................................................... 1782? * University Professor, Syracuse University ** Michael O. Sawyer Chair of Constitutional Law and Politics, Maxwell School of Citizenship, Syracuse University. *** Assistant Professor, Political Science, University of the Incarnate Word. I. Introduction Justice Antonin Scalia?s death raised growing anxiety about ideological judging to a fever pitch. Congressional Republicans refused to schedule hearings for President Obama?s nominee to fill the vacated seat, Merrick Garland, lest a liberal judicial majority emerge.1 The Democrats retaliated with an attempted filibuster designed to stop the confirmation of President Trump?s nominee, Neil Gorsuch, which was thwarted by a change in Senate rules.2 Public concern about Supreme Court nominees reflects a perception that a Justice?s political leaning affects constitutional rulings and usually focuses on the abortion rights issue. Most scholarship addressing the effect of Supreme Court Justices? ideology on their decision-making likewise focuses on rulings interpreting the Constitution.3 1. See, e.g., Nina Totenberg, 170-Plus Days and Counting: GOP Unlikely to End Supreme Court Blockade Soon, NPR (Sept. 6, 2016) https://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikelyto-end-blockade-on-garland-nomination-soon (last visited Dec. 4, 2018) (on file with Washington and Lee Law Review). 2. See, e.g., Matt Flegenheimer, Senate Republicans Deploy ?Nuclear Option? to Clear Path for Gorsuch, N.Y. TIMES (Apr. 6, 2017) https://www.nytimes.com/2017/04/06/us/politics/neil-gorsuch-supreme-courtsenate.html (last visited Dec. 4, 2018) (on file with the Washington and Lee Law Review). 3. See, e.g., THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY (2004) (focusing on constitutional law cases); MARK J. RICHARDS, THE POLITICS OF FREEDOM OF EXPRESSION: THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES (2013) (focusing on free speech cases); JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED, 316?18, 324?25 (2002) (finding strong support for the attitudinal model of judging Many opponents of Neil Gorsuch?s nomination, however, suggested that his political leanings influence his statutory interpretation and that interpretation of statutes can have a huge effect on the law.4 In particular, campaigners against the Gorsuch nomination focused on the so-called ?freezing trucker? case, in which Judge Gorsuch dissented from a 10th Circuit ruling affirming an award of damages to a trucker who was fired for disobeying an order to drive his unsafe rig or remain in an unheated cab in subzero temperatures.5 His opponents argued, in effect, that Gorsuch?s conclusion that the whistleblower provision of the Surface Transportation Assistance Act did not forbid firing the trucker reflected a bias against workers.6 Senators at his in Fourth Amendment search-and-seizure cases); Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policymaker, 6 J. PUB. L. 279 (1957) (outlining a theoretical and empirical argument based solely on cases where the Court considers the constitutionality of federal legislation for viewing the Court as a member of national partisan regimes that generally track the preferences of those regimes); cf. Mark Latham, The Rehnquist Court and the Pollution Control Cases: Anti-Environmental and Pro-Business?, 10 U. PA. J. CONST. L. 133, 135 (2007) (concluding that the Rehnquist Court was not anti-environmental in pollution control cases); Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1718 (1997) (systematically studying the role of ideology in D.C. Circuit environmental law cases, rather than in Supreme Court cases). 4. See, e.g., Nomination of the Honorable Neil M. Gorsuch to be an Associate Justice of the Supreme Court of the United States, 115th Cong. 1?2 (2017) [hereinafter Nomination] (statement of Sen. Sheldon Whitehouse, Member, S. Comm. on the Judiciary) (citing numerous statutory cases in which the Supreme Court was divided 5?4, with a Republican majority favoring business interests over ordinary citizens? interests). 5. See TransAm Trucking, Inc. v. Admin. Review Bd., 833 F.3d 1207, 1215?17 (10th Cir. 2016) (Gorsuch, J. dissenting); Elie Mystal, The ?Frozen Truck Driver? Case Democratic Senators are Hanging on Neil Gorsuch, ABOVE THE LAW (Mar. 20, 2017, 4:04 PM), http://abovethelaw.com/2017/03/the-frozen-truckdriver-case-democratic-senators-are-hanging-on-neil-gorsuch/ (last updated Mar. 21, 2017, 10:55 AM) (last visited Dec. 4, 2018) (noting that several Democratic senators emphasized Gorsuch?s callous dissent in this ?Frozen Trucker? case in the nomination hearing) (on file with the Washington and Lee Law Review). 6. See TransAm Trucking, Inc., 833 F.3d at 1208 (noting that this case arose under the whistleblower provision); cf. Camille E. Peeples, Essay: Rights, Facts, and Relevant Inquiries: Surveying Judge Neil M. Gorsuch?s Employment Law Jurisprudence, 69 STAN. L. REV. ONLINE 193, 197 n.16 (2017) (citing TransAm as showing that Gorsuch does not defer to agencies, especially when their actions contradict statutory language). confirmation hearing also relied heavily on his statutory rulings in arguing that Judge Gorsuch favors corporations over workers across a broad range of cases.7 The effect of judicial ideology on the Supreme Court?s statutory interpretation, however, has received less systematic study than questions about ideology?s role in constitutional law cases.8 When the Justices interpret statutes, do they simply enact their political views into law under the guise of a judicial opinion, so that party affiliation rather than legal considerations explain what the Court does?9 Or should we view the Supreme Court as 7. See, e.g., Nomination, supra note 4, at 1?4 (questions for the record of Sen. Al Franken, S. Comm. on the Judiciary) (questioning Gorsuch about pro-big business holdings in an antitrust case); Nomination, supra note 4 (questions for the record of Sen. Patrick Leahy, S. Comm. on the Judiciary) (questioning Gorsuch on a narrow interpretation of statutory protection against a hostile work environment). 8. Cf. Mario Bergara, Barak Richman & Pablo T. Spiller, Modeling Supreme Court Strategic Decision Making: The Congressional Constraint, 28 LEGIS. STUD. Q. 247, 262, 267?68 (2003) (finding that from 1947?1992, as the liberalism of congressional ?players? increased, so too did the percentage of liberal statutory decisions); but cf. Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28, 42?43 (1997) (finding that from 1947?1992, Supreme Court Justices did not generally temper sincere ideological preferences to rationally anticipate overrides by Congress). For a mixed assessment of whether credible threats from Congress affect votes of ideological ?outlier? Justices in statutory cases, see Thomas G. Hansford & David F. Damore, Congressional Preferences, Perceptions of Threat, and Supreme Court Decision Making, 28 AM. POL. Q. 490, 504?05 (2000). Earlier work also found variance in the relationship between judicial and congressional ideological composition. See William N. Eskridge Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 340, 346?47, 349?52 (1991) (finding from 1967?1990, Congress was more likely to override decisions featuring an ideologically divided Court, but from 1986?1990 Congress was more likely to override ?identifiably conservative? decisions than liberal ones). On the role of statutory decisions in assessing the Court?s influence on policymaking, see Jonathan D. Casper, The Supreme Court and National Policy Making, 70 AM. POL. SCI. REV. 50, 56?57 (1976) (arguing that accounts of the Court?s influence on national policymaking are incomplete without attention to the Court?s power of statutory interpretation); Dahl, supra note 3, at 293?94 (finding a limited role for the Court as part of a ?dominant alliance,? but focusing on constitutional decisions). 9. See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 65 ( 1993 ) (providing what is generally understood to be the canonical statement of the relationship between judicial ideological preferences and voting patterns); see also SEGAL & SPAETH, supra note 3. Some political scientists have modeled empirical support for the influence of both legal and obeying statutory language, which often proves more specific and more recent than constitutional language? And how does the Court?s approach square with democracy and the rule of law? Does the Court reflect the will of the Congress that enacted the statute? Or is the Court perhaps performing a different democratic function by updating the statute to reflect contemporary political preferences and/or address new problems?10 And, perhaps most importantly, should the Court be doing things differently? If so, how? These questions prove difficult to study, because they require a combination of political science, an understanding of the statutes being interpreted, and familiarity with approaches to statutory interpretation. This Article addresses these questions by studying the history of the Supreme Court?s interpretation of the Clean Air Act (CAA),11 which now goes back almost half a century. Many scholars have argued that the Court has shifted from an approach to statutory interpretation that relied heavily on purposivism?the custom of giving statutory goals weight in interpreting statutes?toward one that relies more heavily on textualism during this period.12 At the same time, proponents of dynamic statutory interpretation have argued that courts, in many cases, do not so much excavate a statute?s meaning as adapt a statute to contemporary circumstances.13 The CAA provides a useful prism for evaluating these accounts descriptively and normatively. The Court has taken a keen interest ideological factors in U.S. Supreme Court decision-making. See MICHAEL A. BAILEY & FORREST MALTZMAN, THE CONSTRAINED COURT 47?63 (2011); LEE EPSTEIN, WILLIAM A. LANDES & RICHARD A. POSNER, THE BEHAVIOR OF FEDERAL JUDGES 25?64 (2013) (finding a substantial effect of ideological preferences on decision-making?particularly at the U.S. Supreme Court?while also noting that a variety of legal and professional factors may also affect judicial behavior); Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision Making, 96 AM. POL. SCI. REV. 305 (2002). 10. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994). 11. 42 U.S.C. ? 7401 ( 2012 ). 12. See infra note 20 and accompanying text. 13. See ESKRIDGE, supra note 10, at 9?10 (arguing that as a statute ages the legislature?s original intent loses relevance and courts adapt the statute to changed circumstances). in the CAA.14 Indeed, its interest in recent years has led it to review some cases that generated neither circuit splits nor, arguably, important national issues.15 Over the years, the Court has decided 20 cases interpreting the CAA, a body of case law sufficiently large to ground a focused study of approaches to statutory interpretation, but not so huge that it defies coherent qualitative study. In recent years, the Court has issued a series of rulings addressing EPA?s attempt to grapple with climate disruption, the most important new environmental issue of the last fifteen years.16 These recent decisions provide a case study in dynamic statutory interpretation, as the Court has struggled to adapt the CAA to an important problem not fully anticipated when Congress amended the CAA in 1990, let alone when Congress first enacted it in its modern form in 1970.17 At the same time, we have some older cases that establish a baseline which facilitates inquiry into whether the shifts that have occurred over time reflect new politics, new problems, or new judicial philosophies.18 Focusing on the CAA provides an opportunity to discuss the role of political shifts in attitudes toward the statute itself in Supreme Court adjudication. Specifically, elite opinion and political opinion have shifted in ways that matter to CAA 14. See infra notes 15, 16, 25, 26 and accompanying text. 15. See Michigan v. EPA, 135 S. Ct. 2699, 2706?07 (2015) (reviewing a single ruling about whether EPA must consider cost in deciding whether regulation of an electric utility?s hazardous air pollution is appropriate and necessary, when it has already considered cost in crafting the regulation); Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 308, 313 (2014) (reviewing a single ruling about reducing the applicability of general CAA program to greenhouse gases even when more specific standards will likely prove more important). 16. See Util. Air Regulatory Grp., 573 U.S. at 333?34 (reversing EPA rule tailoring source coverage of greenhouse gas emitters); Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 415 (2011) (holding that the CAA displaces a federal common law nuisance claims against carbon dioxide emitters); Massachusetts v. EPA, 549 U.S. 497, 528 (2007) (holding that the CAA authorizes EPA regulation of greenhouse gases). 17. See, e.g., Robert Barnes, Supreme Court: EPA Can Regulate Greenhouse Gas Emissions, with Some Limits, WASH. POST (June 23, 2014), https://www.washingtonpost.com/politics/supreme-court-limits-epas-ability-toregulate-greenhouse-gas-emissions/2014/06/23/c56fc194-f1b1-11e3-914c1fbd0614e2d4_story.html?utm_term=.ef8b3cb5c8fb (last visited Dec. 4, 2018) (on file with the Washington and Lee Law Review). 18. See KECK, supra note 3, at 11 (noting that ideas affect judicial behavior). interpretation since Congress last amended the statute in 1990.19 One can compare shifts of attitude in judicial opinions with changes in elite and political opinion to develop a specific account of dynamic statutory interpretation?s response to political developments. Part II provides a basic account of the CAA and its evolution to provide a grounding for understanding the particular cases to come. But the CAA is so vast and the problems that arise under it so varied that the presentation of many statutory details must wait until the cases implicating them become the focus of analysis. This section also discusses the evolution of political and elite attitudes toward the CAA in order to provide a basis for the evaluation of dynamic statutory interpretation to follow. Part III develops a baseline in the interpretation of the statute from 1970 to 2004. This Part develops the concepts of purposivism and textualism in this context and examines how they play out in the case law of this period. The standard accounts of statutory interpretation suggest that the Supreme Court?s approach shifted from a heavy reliance on purpose to a much heavier reliance on text.20 This section tests this account in the CAA context and uncovers a surprise?judicial pursuit of goals unmoored from text and purpose in the 1980s, which delayed the shift to textualism in the CAA context. Part IV argues that more recent Supreme Court CAA cases evince a shift to dynamic statutory interpretation, but in two different senses. The Court?s dynamic interpretation in some cases adapts the CAA to a new problem, that of global climate disruption. In other cases, the Court?s dynamic interpretation adapts the statute to elite political opinion favoring what Cass Sunstein calls the ?cost-benefit state??a state devoted to cost-benefit balancing?or to political opinion opposing regulation.21 Part V evaluates the shift to dynamic statutory interpretation, which one sees in the previous decade. It argues that the problem many judges associate with purposivism?its supposed tendency to foster judicial opinions reflecting judges? political views?has proven more pervasive in the recent era of dynamic statutory interpretation than in the 1970s, when the Court regularly gave substantial weight to statutory purpose. It examines the question of how best to carry out statutory adaptation in a way that does not undermine democracy and the rule of law; in particular, considering what role elite views should play in that adaptation. II. The Clean Air Act A. Key Statutory Features Congress enacted the modern CAA in 1970 in response to an environmental crisis that led to mass demonstrations and a broad consensus favoring strict environmental protection.22 The CAA?s stated goal is to protect public health and the environment, rather than to achieve a balance between environmental protection and competing considerations.23 The CAA pursues this goal by establishing a comprehensive program of pollution control. It requires EPA to list pollutants that endanger public health and the environment.24 For ubiquitous pollutants, called ?criteria pollutants,? the CAA operationalizes its goals by requiring EPA to promulgate and periodically revise national ambient air quality standards (NAAQS), set at levels that protect public health and the environment with an adequate margin of safety.25 As the term ?ambient? suggests, these 22. Luke W. Cole, Foreword: A Jeremiad on Environmental Justice and the Law, 14 STAN. ENVTL. L.J. ix, xii (1995) (discussing mass demonstrations seeking environmental protection, such as Earth Day in 1970, which involved millions of people). 23. See 42 U.S.C. ? 7401(b)(1) ( 2012 ). This paragraph defines the purpose as ?to protect and enhance the quality of the Nation?s air resources so as to promote the public health and the productive capacity of its population.? Id. It expresses the view that clean air will not only protect public health but also make people more productive, because pollution-induced illness can increase absenteeism and harm productivity in the workplace. Id. 24. See 42 U.S.C. ? 7408(a)(1) ( 2012 ). 25. See Whitman v. Am. Trucking Ass?ns, 531 U.S. 457, 465 (2001) (explaining that the CAA requires EPA to establish the NAAQS to protect public standards apply to levels of pollution in the air surrounding us. To reduce levels of ambient pollution, many polluters must reduce their emissions. Accordingly, the CAA requires states to develop state implementation plans (SIPs), containing enforceable emissions limits for stationary sources (e.g., factories and power plants) emitting criteria pollutants and their precursors.26 These plans must contain standards adequate to secure attainment of the NAAQS, and EPA reviews the plans to make sure that they do.27 Although the CAA primarily relies upon state regulation to achieve the NAAQS, it carves out a substantial federal role as well.28 EPA must establish New Source Performance Standards for major new and modified sources under ? 111 of the CAA.29 The CAA also establishes a ?technology-forcing? program of federal regulation of ?mobile sources? such as cars and trucks, which includes regulation of fuel.30 The CAA also operationalizes its health and environmental protection goal by requiring federal regulation of hazardous air pollutants?non-criteria pollutants associated with very serious health effects such as cancer and birth defects?designed to protect public health with an ?ample margin of safety.?31 This program did not work very well under the 1970 and 1977 CAA Amendments, primarily because EPA listed only eight pollutants for regulation.32 So Congress itself listed 191 hazardous air pollutants for mandatory federal regulation in the 1990 Amendments.33 The health with an adequate margin of safety based on health effects information in the ?criteria? documents required by the CAA). 26. See Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 65 (1975) (discussing the CAA requirement that states develop and submit plans to implement and enforce the NAAQS). 27. See id. at 65?67, n.2 (characterizing the requirement that the plans secure attainment as ?the heart of the 1970 Amendments? and citing the language requiring EPA review). 28. 42 U.S.C. ? 7411 ( 2012 ). 29. Id. 30. See 42 U.S.C. ?? 7521?7589. 31. See Nat. Res. Def. Council v. EPA, 529 F.3d 1077, 1079 (D.C. Cir. 2008) (explaining that the CAA required regulation to protect public health from pollutants increasing mortality or serious illness). 32. Id. 33. Id. 1990 Amendments require a round of technology-based regulation of major sources of hazardous air pollution based on maximizing feasible emission reductions.34 Congress did not, however, abandon the goal of fully protecting public health, requiring a second round of regulation designed to protect public health with an ample margin of safety from any residual risk, thereby largely mirroring the standard setting approach of the 1970 Amendments in a second phase of contemplated regulation.35 The CAA introduced an enforcement innovation consistent with its effort to vigorously pursue the goal of fully protecting public health and the environment in spite of likely resistance by regulated industries and government officials influenced by them?the citizen suit. It empowered ?any person,? including individual citizens, to sue violators of the CAA and to seek judicial review of EPA?s implementing decisions.36 The CAA became increasingly lengthy and complex over time. The 1970 Amendments established the statute as perhaps the most complex and lengthy statute other than the Internal Revenue Code.37 In 1977, Congress added complex provisions requiring a program for Prevention of Significant Deterioration (PSD) of air quality in areas that had attained the NAAQS, in order to prevent them from becoming nonattainment areas and to preserve visibility in the national parks.38 The PSD program requires new and modified ?major sources? to use Best Available Control Technology (BACT) to limit their emissions.39 The Congress enacting the 1990 Amendments sought to correct EPA?s and the states? failure to achieve the CAA?s health protection goals through extremely detailed instructions with respect to both hazardous and criteria air pollutants.40 It also added new titles addressing acid rain and stratospheric ozone depletion.41 Furthermore, it adapted the statute to reflect elite opinion favoring emissions trading, by creating a trading program regulating sulfur dioxide in the acid rain title and by authorizing market-based mechanisms in SIPs.42 Finally, it required that owners and operators of major sources obtain an operating permit detailing how they would comply with all of the CAA requirements applicable to each source in order to improve compliance and enforcement.43 All of these amendments created a broad federal role in securing clean air and passed with overwhelming bipartisan support.44 B. The Evolution of Philosophy Toward Clean Air The modern CAA reflects a particular environmental and health protection philosophy. Senator Edmund Muskie, a major architect of the CAA, believed that the government should make sure that the public has clean and safe air to breathe.45 Although the CAA contains numerous provisions that require consideration of cost (for example, in the technology-based standard setting provisions that one finds throughout much of the CAA), ultimately the CAA reflects a philosophy of giving primacy to protection of the Conservation v. EPA, 540 U.S. 461, 470?73 (2004) (describing the PSD program). 40. See, e.g., 42 U.S.C. ?? 7412, 7511 ( 2012 ). 41. Id. ?? 7651?7651o, 7671?7671q. 42. Id. ?? 7410(a)(2)(A), 7651?7651e. 43. Util. Air Regulatory Grp., 573 U.S. at 309 (noting that Title V requires a ?comprehensive operating permit?). 44. See CLEAN AIR ACT AMENDMENTS OF 1990: S. ROLL CALL VOTE NO. 324, 136 CONG. REC. 36,138 (1990) (recording that the Amendments passed the Senate 89?10); CLEAN AIR ACT AMENDMENTS OF 1990: H.R. ROLL CALL VOTE NO. 525, 136 CONG. REC. 35,084 (1990) (recording that the Amendments passed the House 401?25). 45. See Union Elec. Co. v. EPA, 427 U.S. 246, 258 (1976) (describing the government?s responsibility as determining what is necessary to ?protect the health of persons? (quoting 116 CONG. REC. 32901?02 (1970) (statement of Sen. Muskie))). public health and the environment.46 Indeed, the Senate Report accompanying the 1970 Amendments make it clear that owners of polluting facilities should figure out how to operate without harming public health and the environment or shut down.47 Thus the CAA reflects a technology-forcing philosophy?a view that given sufficiently strict standards, polluters would figure out how to operate without damaging public health and accomplish feats that appeared infeasible.48 The primacy afforded public health protection is congruent with a rights-based view of environmental protection that one often finds reflected in the common law, especially in earlier cases.49 This rights-based view, however, attracted criticism, which gained strength during the 1980s. During the 1970s, Richard Posner helped establish law and economics as an overarching framework to guide legal decision-making.50 He claimed that law often aims to achieve economic efficiency and argued for the 46. Compare 42 U.S.C. ?? 7411(a)(1), 7412(d)(2), with id. ?? 7401(b)(1), 7409(b)(1), 7412(f)(2)(B). 47. See Union Elec. Co., 427 U.S. at 259 (noting that the Senate committee determined that air pollution sources must either meet the health-based standards or ?be closed down? (quoting S. REP. NO. 91-1196, at 2?3 (1970))). 48. See id. at 258?59 (concluding that the entire Congress demanded attainment of the NAAQS within three years ?even if attainment does not appear feasible?). 49. See John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 233?35 (1990) (characterizing CAA ? 112?s language as creating a right to a risk-free environment); Amy Sinden, In Defense of Absolutes: Combating the Politics of Power in Environmental Law, 90 IOWA L. REV. 1405, 1410?12 (suggesting that National Ambient Air Quality Standards under the CAA reflect a rights-based approach to addressing power imbalances); see also Mary Jane Angelo, Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First-Generation Environmental Law, 33 ECOLOGY L. Q. 105, 108 (2006) (describing risk-based approaches to environmental harm as ?absolutist?); David M. Driesen, The Ends and Means of Pollution Control: Toward a Positive Theory of Environmental Law, 2017 UTAH L. REV. 57, 66?68 (discussing the risk-based protective goals in the CAA and other statutes); see, e.g., Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907) (granting an injunction of air pollution constituting a nuisance as of right at the behest of a sovereign state); Boomer v. Atl. Cement Co., 26 N.Y.2d 219, 223 (1970) (noting that traditionally New York did not balance equities in deciding whether to enjoin a nuisance, before deciding to balance equities in the case before it). 50. See generally RICHARD POSNER, THE ECONOMIC ANALYSIS OF LAW 16 (2d ed. 1977). normative desirability of economic efficiency.51 Cost-benefit analysis (CBA) of regulation can, in principle, weed out economically inefficient rules.52 The law-and-economics movement strongly influenced lawyers and other policy-making elites and came to exercise a great deal of influence over law, including environmental law.53 Regulated corporations championed CBA from early on, recognizing its potential to delay and weaken regulation.54 In 1982, Ronald Reagan promulgated an executive order demanding CBA of major regulations.55 This order also ended the independence of EPA, which Richard Nixon had helped establish in order to implement the rights-based view of environmental law reflected in the CAA and other major environmental statutes of the 1970s.56 The executive order did this by authorizing the Office of Information and Regulatory Affairs (OIRA) in the Office of Management Budget to oversee EPA implementation of the CAA and other environmental statutes.57 51. See id. at 18 (suggesting that judges employ economic reasoning, albeit without explicitly invoking economic concepts); Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L. REV. 487, 488 (1980) (arguing that economic efficiency has value because it maximizes wealth); cf. David M. Driesen & Robin Malloy, Critiques of Law and Economics, in OXFORD HANDBOOK OF LAW AND ECONOMICS 300, 300?03 (2017) (Francisco Parisi ed., 2017) (briefly reviewing major critiques of this claim). 52. See David M. Driesen, Distributing the Costs of Environmental, Health, and Safety Protection: The Feasibility Principle, Cost-Benefit Analysis, and Regulatory Reform, 32 B.C. ENVTL. AFF. L. REV. 1, 55 ( 2005 ) [hereinafter Driesen, Distributing Costs] (noting that ?allocatively efficient regulation requires that the cost of environmental regulation equal the benefits derived from it?). 54. See THOMAS O. MCGARITY, REINVENTING RATIONALITY: THE ROLE OF REGULATORY ANALYSIS IN THE FEDERAL BUREAUCRACY 149?50 (1991) (noting that ?regulatees? support CBA). Exec. Order No. 12,291, 3 C.F.R. 127 (1981). 56. See Robert V. Percival, Checks Without Balance: Executive Office Oversight of the Environmental Protection Agency, 54 L. & CONTEMPORARY PROBLEMS 127, 131?32 (1991) (discussing Nixon?s support for an independent EPA in preference to a proposal calculated to balance development and environmental interests). 57. See Exec. Order No. 12,291, 3 C.F.R. 127, ? 3 (1981) (detailing the steps needed to obtain OMB approval of agency action). Over the years, elite policy experts came to embrace CBA and many of the attitudes that often came with it. Legal scholars at elite law schools, for example, associated CBA not only with economic efficiency, but also with enhanced rationality, better priority setting, and improvement of ?overall well-being.?58 These views enjoy little support from environmental law professors, who have grave concerns about the application of CBA to difficult-to-quantify environmental effects and who tend to support the values embedded in the original statutes.59 Law and economics usually treats law as being about balancing costs and benefits. Its proponents see rational environmental regulation as a product of some sort of balancing and identify CBA with balancing. They often treat a law aimed at a very specific goal as likely to trigger unintended consequences and as creating unhealthy ?tunnel vision.? Justice Stephen Breyer?s academic work fits within this elite tradition and offers perhaps the best articulation of concerns about tunnel vision and priority setting derived from a view of environmental law as just another form of economic resource allocation.60 Thus, elite opinion, defined as the opinion of policy experts and business leaders, shifted toward a balancing approach during the 1980s. Political opinion, defined as the opinion of elected politicians, shifted more slowly. Although Congress appeared initially hostile to CBA, by the mid-1990s it enacted a law basically ratifying the 58. See Driesen, Distributing Costs, supra note 52, at 60?66 (reviewing these arguments). 59. See, e.g., FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004) (critiquing pricing environmental benefits and claiming that some things are priceless); DOUGLAS A. KYSAR, REGULATING FROM NOWHERE: ENVIRONMENTAL LAW AND THE SEARCH FOR OBJECTIVITY (2010) (arguing that CBA ducks essential normative question that environmental law has forthrightly addressed); MCGARITY, supra note 54; SIDNEY A. SHAPIRO & ROBERT L. GLICKSMAN, RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH 51?55 (2003) (suggesting that feasibility regulation avoids serious economic disruption while declining to treat injury and death as fungible like a dollar cost). 60. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 10?19 ( 1993 ) (discussing a problem of ?tunnel vision? and recommending better priority setting as the cure); Lisa Heinzerling, Political Science, 62 U. CHI. L. REV. 449, 461 (1995) (reading Breyer?s book as ?most of all, a call for better prioritization?). reform contained in the executive orders.61 Furthermore, while initially a Republican reform, Democratic presidents promulgated executive orders retaining OIRA review and CBA as part of the regulatory structure.62 Thus, by the mid-1990s both elite and political opinion had shifted away from supporting rights-based environmental protection toward support of a ?balanced? approach of some kind.63 Although politicians and other elites have moved toward cost-benefit balancing and skepticism toward regulation, public opinion has remained much more stable in support of the CAA?s original philosophy. From 1994 to 2016, between 71% and 80% of the public indicated that we should do whatever it takes to protect the environment.64 64. On eleven occasions from 1994?2016, the Pew Research Center asked respondents whether ?[t]he country should do whatever it takes to protect the environment? or ?[t]he country has gone too far in its efforts to protect the environment.? PEW RESEARCH CENTER, MARCH 2016 POLITICAL SURVEY (2016), http://www.people-press.org/files/2016/03/03-31-2016-Political-topline-forrelease.pdf. Support for the former option ranged from 71?80%, support for the latter from 15?25%. Id. When asked to weigh a tradeoff between environmental protection and economic growth, popular majorities usually still favor environmental protection, though by a narrower margin. Environment, GALLUP, http://www.gallup.com/poll/1615/environment.aspx (last visited Dec. 4, 2018) (on file with the Washington and Lee Law Review). In twenty-nine polls conducted from 1984?2016, a majority of respondents supported environmental protection over economic growth in eighteen and a plurality did so in another six. Id. Only five times, all from 2009?2013, did a plurality favor economic growth. Id. C. Global Climate Disruption By the 1990s, a new environmental problem had become prominent?global climate disruption. Greenhouse gas emissions, mostly from burning fossil fuels, have warmed the earth?s average mean surface temperature and will increase that temperature further unless emissions are eliminated.65 Moreover, this warming triggers very serious consequences: increasingly severe extreme weather events, rising seas, inundation of coastal areas, killer heat waves, drought, the spread of infectious diseases, destruction of ecosystems, and the elimination of many species figure among its myriad effects.66 Because this problem stems from greenhouse gas emissions around the world, avoiding dangerous climate disruption requires global effort.67 In 1990, Congress required study of global climate disruption68 but did not include specific provisions explicitly establishing standards for greenhouse gas emissions.69 The 1990 Amendments do contain specific provisions to tackle a related global problem, stratospheric ozone depletion, requiring a phase-out of the major ozone depleting chemicals to implement, and in some ways go beyond, the Montreal Protocol on Ozone Depleting Substances, which the United States ratified in 1988.70 But no international treaty addressing global climate disruption existed in 1990, and the science was just becoming established. During the 1990s, however, the global community established a treaty regime to address global climate disruption.71 At the United Nations Conference on Environment and Development in 1992, many countries signed on to the United Nation?s Framework Convention on Climate Change (Framework Convention), which the United States subsequently ratified.72 This agreement provides a set of principles and goals for addressing climate disruption, but does not contain binding obligations to reduce greenhouse gas emissions.73 In 1997, the Conference of the Parties to the Framework Convention adopted the Kyoto Protocol to the Framework Convention, which requires developed countries to reduce greenhouse gas emissions.74 The United States, however, never ratified the Kyoto Protocol, and President George W. Bush expressly repudiated it in 2001.75 This failure to ratify the Kyoto Protocol suggests a significant change in political climate, as the United States throughout the 1970s and 1980s regularly led international efforts to combat serious international environmental problems.76 In 2008, however, it appeared that the United States would at least follow other nations? lead and address global climate disruption. In that year?s presidential election, both Republican candidate John McCain and his rival Barack Obama favored action on global climate disruption.77 And, consistent with this bipartisan consensus, the House passed comprehensive legislation mandating reductions in greenhouse gas emissions primarily through an emissions trading program shortly after President Obama?s inauguration.78 This legislation, however, failed to pass the Senate.79 Since then, the political landscape has shifted in ways that make the political climate today radically different from the political climate that existed when Congress created and amended the CAA and even from the climate prevailing in 2008. Opposition to action on global climate disruption has become an article of faith among Republican politicians and presidential candidates.80 Thus, political opinion has recently departed markedly from educated elite opinion, which tends to favor some action on global climate disruption in light of the strong evidence of significant harm, even though it favors basing that action on CBA. This shift in political opinion made it impossible to pass new legislation to address climate disruption even after 2008. Accordingly, President Obama addressed it primarily under the CAA.81 President Trump, however, declared climate disruption a 77. See Michael B. Gerrard, McCain vs. Obama on Environment, Energy, and Resources, 23 NAT. RES. & ENV?T, Fall 2008, at 3, 4. (noting that both John McCain and Barack Obama supported cap-and-trade legislation to reduce greenhouse gas emissions). 78. See MARK HOLT & GENE WHITNEY, CONG. RESEARCH SERV., R40643, GREENHOUSE GAS LEGISLATION: SUMMARY AND ANALYSIS OF H.R. 2454 AS REPORTED BY THE HOUSE COMMITTEE ON ENERGY AND COMMERCE (2009) (analyzing the bill that passed in the House). 79. See Kassie Siegel et al., Strong Law, Timid Implementation: How the EPA Can Apply the Full Force of the Clean Air Act to Address the Climate Crisis, 30 UCLA J. ENVTL. L. & POL?Y 185, 186 ( 2012 ) (mentioning the ?defeat of economy-wide climate legislation in the 111th Congress?). 80. See id. at 186 (describing the Congress elected in 2010 as ?openly hostile to any form of greenhouse regulation?); see also Art Swift, Americans Again Pick Environment Over Economic Growth, GALLUP (Mar. 20, 2014), http://www.gallup.com/poll/168017/americans-again-pick-environmenteconomic-growth.aspx (last visited Dec. 4, 2018) (indicating that about two-thirds of Democrats but only one-third of Republicans would give environmental protection priority over economic growth in 2014 and noting that this is the largest partisan gulf since 1997) (on file with the Washington and Lee Law Review). 81. See Uma Outka, The Obama Administration?s Clean Air Act Legacy and hoax and seeks to unwind Obama Administration initiatives to address the issue.82 D. Summary of Background In sum, the CAA reflects a rights-based view of environmental law that enjoyed broad bipartisan and public support for at least twenty years. Since its enactment, however, this view has become less popular among both elites and politicians.83 In addition, EPA and thus the courts have recently applied the CAA to a new problem not fully anticipated in 1970 or even 1990?the problem of global climate disruption.84 These background realities invite consideration of whether the Court has dynamically interpreted the statute either to adapt to a new problem or to adapt to new attitudes among elites or politicians. That question requires some consideration of broader judicial trends in statutory interpretation, which also may influence cases? outcomes. III. Purpose, Text, and Judge-Made Law: The Court?s Interpretation of the Clean Air Act from 1970 to 2004 A. Purpose and Text in Statutory Interpretation A venerable canon of statutory construction urges courts to construe statutes in a way that effectuates their purposes.85 the UNFCC, 48 CASE W. RES. J. INT?L L. 109, 117?18 (2016) (explaining that several of President Obama?s environmental goals ?have proven integrally connected by the Administration?s regulatory agenda under the CAA?). 82. See, e.g., Coral Davenport, Donald Trump Could Put Climate Change on Court for Danger Zone, N.Y. TIMES (Nov. 10, 2016), https://www.nytimes.com/2016/11/11/us/politics/donald-trump-climatechange.html (last visited Dec. 4, 2018) (on file with the Washington and Lee Law Review). 83. Siegel et al., supra note 79. 84. Supra note 68 and accompanying text. 85. See 3 NORMAN J. SINGER & SHAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION ? 58:6 (7th ed. 2011) (referring to construction to realize a statute?s purpose as ?ancient wisdom?). will . . . contribute significantly? to nonattainment of the NAAQS in neighboring states.332 This provision strongly suggests that EPA should require abatement from pollution sources sufficient to avoid significantly interfering with NAAQS achievement, a task requiring air quality modeling to make sure that the amount of reductions suffice to attain this goal.333 This focus on environmental effects might imply no consideration of cost or technology in setting targets, a conclusion in keeping with Union Electric?s understanding that the CAA subordinates cost considerations to the goal of achieving the NAAQS.334 Such a view of the statute, while textually supported, does not comport with elite intellectual trends. Accordingly, EPA considered the marginal cost effectiveness of pollution reductions and based its plan for abating these emissions on conclusions about sensible cost per ton of pollution reduction numbers.335 Furthermore, it used a mechanism favored by law and economics?emissions trading?to realize these reductions.336 But emissions trading works for pollutants where location does not matter, and location does matter to the question of whether a set of reductions will avoid interfering with neighboring states? attainment efforts.337 When the issue of whether EPA acted properly in considering cost in setting the targets reached the Supreme Court in EPA v. EME Homer City Generation (Homer City)338 the Court affirmed EPA?s Clean Air Transport Rule in a 6?2 decision.339 The Homer City majority clearly treated EPA?s core methodology of considering costs in establishing state abatement obligations as an appropriate adaptation of the statute to the problems of addressing interstate air pollution.340 It also approved of employing cost in part based on contemporary elite thinking, finding its use in allocating emission reduction obligations among the states ?efficient.?341 The majority also linked this adaptation to technical necessity, as it found the alternative suggested by the D.C. Circuit, reducing emissions in proportion to each source?s contribution to each state?s attainment problem, unworkable.342 Justice Scalia?s dissent, however, provides a textually strong argument that the statute requires an allocation based on air quality alone, not cost.343 And the dissent did not agree that workability considerations required upholding EPA?s decision about the proper methodology for allocating reduction obligations to states.344 On a second issue?whether EPA could promulgate a federal plan implementing its allocations?the dissent and majority flipped their approaches to statutory interpretation. The majority closely followed text that clearly showed that EPA may promulgate a federal implementation plan after disapproving state plans that fail to satisfy the Good Neighbor obligation.345 The dissent, however, adapted the statute creatively to solve a perceived 338. 572 U.S. 489 (2014). 339. See id. at 524. 340. See id. (finding that the D.C. Circuit requirement to allocate emission reductions in proportion to each state?s contribution to neighboring states? air quality problems unworkable). 341. See id. at 519?20. 342. See id. at 515?16 (finding that the ?proportionality approach could scarcely be satisfied in practice?). 343. See id. at 527?29 (Scalia, J., dissenting) (pointing out that the statutory reference to significant contribution to air pollution has no logical relationship to cost). 344. See id. at 530?35 (Scalia, J., dissenting) (rejecting the majority arguments that proportional reductions are impossible and result in extensive overcontrol). 345. See id. at 507?08 (noting that the statute authorizes a FIP anytime within two years of EPA disapproval of a SIP). problem. Justice Scalia, the apostle of textualism, abandoned text on the ground that states cannot be expected to comply with the Good Neighbor Provision without effective EPA guidance and therefore needed another opportunity to do so now that EPA had issued guidance.346 The Scalia dissent buttresses this argument with a claim that the CAA?s cooperative federalism structure requires giving states a second chance now that EPA has provided specific targets.347 Thus, the Court ratified EPA?s textually problematic adaptation of goal-setting to elite views, but simply followed text to ratify its implementation procedures. The dissent favored honoring textual constraints on EPA?s goal-setting while creatively adapting the statute to reign in EPA?s textually based approach to cooperative federalism. 346. See id. at 538?39 (Scalia, J., dissenting) (accusing the majority of forcing states to guess at what their responsibilities might be with respect to the Good Neighbor Provision). The relevant text requires SIPs to include ?provisions . . . prohibiting . . . any source . . . within the State from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in . . . any other State? within three years of EPA?s promulgation of a NAAQS. 42 U.S.C. ? 7410(a)(1) ( 2012 ); id. ? 7410(2)(D)(i). If a state fails to submit an adequate SIP, the relevant text demands that EPA ?promulgate a [f]ederal implementation plan at any time within [two] years after? disapproving a SIP. Id. ? 7410(c)(1). Because EPA had disapproved the relevant SIPs for noncompliance with the Good Neighbor Provision, it had clear statutory authority to issue a federal implementation plan (FIP). EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 538?39 (2014) (Scalia, J., dissenting). Justice Scalia argued that the statutory principle that states have ?the primary responsibility? for air pollution control requires that EPA issue guidance before disapproving a SIP or promulgating a FIP but admits that the statute does not require any EPA guidance at all. See id. at 537 (Scalia, J., dissenting). Scalia argues that EPA has discretion to postpone the SIP submission deadline until after it issues guidance on how to comply with the Good Neighbor Provision, but points to no statutory language authorizing such a postponement. See id. at 542 (Scalia, J., dissenting). He also argues that EPA need not promulgate a FIP before two years elapse, and that doing so is an abuse of discretion in this case. See id. at 542?43 (Scalia, J., dissenting). In short, Scalia?s argument was based on his policy preference for guidance and runs counter to very clear text respecting SIP content and the deadline for SIP submission. 347. See EPA v. EME Homer City Generation, 572 U.S. 489, 537 (2014) (Scalia, J., dissenting) (finding that the majority?s reading abandons cooperative federalism in favor of ?centralized federal control?). A clearer example of judicial adaptation of a statute to elite views comes from Michigan v. EPA,348 which reverses an EPA decision finding regulation of hazardous air pollutants from power plants ?appropriate and necessary.?349 EPA found such regulation appropriate and necessary because of evidence that the emissions remaining after application of the acid rain program pose a significant hazard to public health.350 In making this determination, EPA did not consider cost, deferring such consideration to the first round of regulation, when it considered cost in promulgating technology-based standards to regulate hazardous air pollutants from power plants.351 The statutory phrase ?appropriate and necessary? on its face seems extraordinarily open-ended.352 One might take the view that environmental regulation is appropriate and necessary when a pollution problem seriously impacts public health or the environment.353 Or one might take the view that one should also consider the costs of regulation in deciding about the appropriateness of regulation, a view more in keeping with elite thinking about the importance of CBA. On its face, this sort of open-ended language offers a compelling context for the application of deference to EPA?s decision, as it seems to require a political decision of the sort not appropriate to the judiciary.354 The Court, however, in a 5?4 opinion split along the Court?s liberal?conservative fault line, based its decision on the majority?s preference for elite views and refused to defer to EPA?s preferred reading of a statutory provision that seems devoid of specific content, finding EPA?s cost-blind interpretation unreasonable under Chevron.355 The Court notes early in its opinion that EPA ?refused to consider whether the costs of its decision outweighed the benefits.?356 In keeping with the ?comprehensive rationality? traditionally associated with CBA, the Court read the term ?appropriate? as an ?all-encompassing term.?357 The appropriateness inquiry requires consideration of cost, because it would not be appropriate to impose ?billions of dollars? of cost ?for a few dollars in health or environmental benefits.?358 Thus, the Court assumes that environmental and health benefits can be reasonably described in dollar terms and adopts the views of Cass Sunstein, who has frequently argued that a major benefit of CBA involves avoidance of costs grossly disproportionate to benefits.359 Echoing Justice Breyer?s academic contributions to the literature advocating a ?cost-benefit state,? the Court notes that spending too much on one problem may leave fewer resources to devote to more serious problems, a frequently asserted (and cogently contested) assumption of those viewing regulation as just another form of resource allocation.360 Although the Court stopped short of deference should have applied here); see generally KECK, supra note 3, at 186 (noting that ?if judicial restraint means anything . . . it must mean that the unelected judiciary? should play a ?smaller role in settling divisive conflicts?). 355. See id. at 2711 (finding it unworkable to read the statute ?to mean that cost is irrelevant to the initial decision to regulate power plants?). 356. Id. at 2706. 357. Id. at 2707; cf. MCGARITY, supra note 54, at 5, 10?11 (explaining the concept of comprehensive rationality and its relationship to CBA). 358. Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). 359. See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 758 (1999) (arguing for a judicial presumption that regulation is unreasonable if it generates costs ?grossly disproportionate to benefits?). 360. See Michigan, 135 S. Ct. at 2707?08 (?Consideration of cost . . . reflects the reality that ?too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems.?? (quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 233 (2009) (Breyer, J., concurring in part and dissenting in part))); mandating consideration of formal CBA, it justified its decision to require consideration of cost in evaluating a statutory trigger with many of the same arguments that lie behind the law and economics movement?s support for CBA, including the views of elite moderates, such as Breyer and Sunstein.361 The dissenting Justices (including Justice Breyer) would defer to EPA?s decision, largely because EPA considered cost and indeed conducted a CBA when it developed the regulation that the appropriate and necessary finding led to.362 The dissenters, however, echoed the elite views found in the majority opinion as to general regulatory philosophy and suggested that those views would have proven dispositive if EPA had not conformed its subsequent actions to those views. It opined, contrary to the general philosophy of the CAA, that power plant regulation would be ?unreasonable? if EPA did not consider cost at all in regulating power plants.363 Echoing the majority?s articulation of elite orthodoxy, the dissent supported a presumption favoring the new elite consensus?requiring EPA to consider costs ?[u]nless Congress provides otherwise.?364 Thus, the dissent articulates a position strikingly at odds with the Court?s cases following the CAA?s original philosophy, as both Union Electric and American Trucking hold that Congress does not intend to require cost consideration unless it specifically mentions cost.365 The dissent also echoes the majority?s articulation of concerns about costs cf. David M. Driesen, Getting Our Priorities Straight: One Strand of the Regulatory Reform Debate, 31 ENVTL. L. REP. 10003, 10015?16 (2001) (noting that Breyer and other regulatory reformers do not explain how relaxing ?even ridiculously stringent government regulation would increase the funding of childhood vaccination programs, or . . . other . . . preferred public health programs?); Thomas O. McGarity, A Cost-Benefit State, 50 ADMIN. L. REV. 7, 34 (1998) (explaining that no vehicle exists for channeling cost savings from relaxed regulation to ?deserving social programs?). 361. See Michigan, 135 S. Ct. at 2711 (declining to mandate formal CBA). 362. See id. at 2717 (Kagan, J., dissenting) (finding EPA?s action in not considering cost at the first stage reasonable because it considered cost subsequently, including a CBA). 363. See id. at 2717. 364. Id. 365. Whitman v. Am. Trucking Ass?n, 531 U.S. 457, 467 (2001); Union Elec. Co. v. EPA, 427 U.S. 246, 271 n.5 (1976). grossly disproportionate to benefits and mandates to clean up one form of pollution wasting resources that might be better spent on more important problems.366 The elite view disfavoring the CAA?s philosophy of fully protecting public health regardless of apparent cost or feasibility so thoroughly pervades the thinking of the Supreme Court, and perhaps even EPA in this case, that none of the Justices even considered the incongruity of declining to regulate based on cost when the very program before the Court ultimately aimed to provide a basic level of safety regardless of cost.367 Although the Court extensively discussed the relationship between the ?appropriate and necessary? trigger and the immediately subsequent cost-sensitive, technology-based rulemaking, it did not discuss the CAA?s requirement to eliminate residual risk through a standard protecting public health with an ample margin of safety if the technology-based standard proves insufficiently protective.368 The Court therefore failed to note that relying on cost considerations in declining to regulate hazardous air pollutants found to harm public health and the environment contradicts the CAA?s overall philosophy, which is plainly reflected in the program before it.369 Thus, recent CAA cases evince a marked turn away from literal statutory interpretation and toward dynamic adaptation of the CAA, either adapting it to elite views or to the problem of 366. See Michigan, 135 S. Ct. at 2717 (Kagan, J., dissenting) (expressing concern about imposing ?massive costs far in excess? of benefits and ?wasteful expenditure[s]? meaning ?considerably fewer resources available to deal? with more serious problems). 367. See 42 U.S.C. ? 7412(n)(1)(A) ( 2012 ); Michigan, 135 S. Ct. at 2709 (responding to an EPA argument that it need not consider cost in making an appropriate and necessary finding because it ?can consider cost when deciding how much to regulate,? thereby suggesting that EPA did not make an argument based on the incompatibility of cost consideration and Section 112?s health protection goal). 368. See Michigan, 135 S. Ct. at 2705 (discussing EPA?s technology-based rulemaking under 42 U.S.C. ? 7412(d)). 369. See 42 U.S.C. ? 7412(n)(1)(A) (stating that the purpose of the studies under this section of the statute is to find ?hazards to public health reasonably anticipated to occur?); see also 116 CONG. REC. 19,204 (1970) (discussing and debating the importance of developing strategies and technology to achieve clean air because of pollution?s threat to people?s health and wellbeing). climate disruption. The Court during this period did not consider statutory purpose, even in cases replete with statutory ambiguity.370 In its place, we find the Court advancing the regulatory philosophy of the majority of Justices. And as Tables 1 and 2 indicate, in every case except Homer City (a 6?2 ruling) and AEP (a unanimous decision), the Roberts Court divided 5?4 along ideological lines on the question of whether to uphold EPA?s decisions.371 C. Summary Description of the Evolution of the Supreme Court?s Approach to Interpreting the Clean Air Act Thus, the Court?s approach to interpreting the CAA has evolved over time. The first decade?s jurisprudence usually focused on text and purpose, but the Court misinterpreted the CAA, in the eyes of Congress, when it invoked quasi-constitutional clear statement rules to resolve cases or chose a fairly natural textual reading completely at odds with the statutory purpose.372 The Rehnquist Court abandoned purpose in the 1980s and began treating statutory interpretation under the CAA as an occasion to elaborate judge-made common law.373 But this emphasis on judge-made law took place in the context of issues regarding attorney fees, which judges may feel competent to resolve according to their own policy views.374 When abandoning purpose in the context of a more technical regulatory issue, the Court deferred to EPA in Chevron.375 Beginning in the 1990s, the Court mostly based its decisions on statutory text and turned to purpose only in one especially difficult statutory case (ADEC).376 Throughout this latter period ( 1990?2004 ), the Court almost always decided cases unanimously or with a large majority, and the one split decision (again ADEC) involved a genuinely difficult issue.377 The last decade, however, has featured a turn toward dynamic statutory interpretation. Some dynamic statutory interpretation cases adapted the CAA to the climate disruption problem, but others adapted the CAA to trends in elite thinking.378 This turn toward dynamic interpretation coincided with a trend toward ideological decision-making. As Table 2 indicates, four of the five decisions issued in the last decade were divided on ideological lines.379 Moreover, the Justices? tendency to adapt the statute to their own preferences through split decisions dominates cases where the text is clear (e.g. Massachusetts v. EPA, where the majority followed it, and UARG, where nobody followed it) and where the text says very little (e.g. Michigan v. EPA).380 The recent division and emphasis on judicial policymaking reminds one of the Rehnquist Court?s common law experiment.381 But the modern cases differ from the 1980s common law cases in at least one respect; the Rehnquist Court made policy decisions in an area where one might expect judicial competence, namely the attorney fee policies for federal litigation.382 The more recent cases feature judicial decisions about core regulatory questions, where 376. See Alaska Dep?t of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) (noting that the purpose of the relevant statutory provisions is to protect public health and welfare). 377. Supra Table 1. 378. See, e.g., Michigan, 135 S. Ct. at 2707 (interpreting ?appropriate and necessary? to require some consideration of costs); Massachusetts v. EPA, 549 U.S. 497, 534 (2007) (discussing global warming in relation to the regulation of greenhouse gasses). 379. Supra Table 2. 380. See generally Michigan v. EPA, 135 S. Ct. 2699 (2015); Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014); Massachusetts v. EPA, 549 U.S. 497 (2007). 381. See supra note 373 and accompanying text. 382. See supra note 374 and accompanying text. one can expect relatively little judicial expertise and substantial congressional and EPA engagement.383 General common law principles do play some role in the recent dynamic cases, but these general principles do not constitute traditional background principles of substantive law, but rather recently minted interpretive canons, as Lisa Heinzerling has shown.384 In UARG, the Court applied a presumption against ?unheralded? economically and politically important exertions of regulatory power under ?long extant statutes.?385 This constitutes an important canon from the standpoint of dynamic statutory interpretation. It suggests a judicial presumption in favor of adapting a statute to important new problems by not allowing it to reach the problem even if its text seems to apply.386 It comports with the recent anti-regulatory turn in the Republican Party.387 But as Massachusetts v. EPA demonstrates, the Court has not consistently applied this anti-regulation presumption.388 In Michigan v. EPA, the Court created a presumption in favor of considering cost, thus putting itself in the camp of elite opinion at 383. Compare, e.g., Michigan, 135 S. Ct. at 2707, with Pennsylvania v. Del. Valley Citizens? Council, 478 U.S. 546, 562?68 (1986). 384. See Lisa Heinzerling, The Power Canons, 58 WM. & MARY L. REV. 1933, 1948?54 (2017) (discussing the newness of the ?UARG canon?); cf. Manning, supra note 20, at 113 (suggesting that only ?firmly established? background principles legitimately allow textualists to fill in textual gaps). 385. Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 323?24 (2014). This canon has an antecedent. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159?60 (2000) (applying the canon to reject FDA regulation of cigarettes as nicotine delivery devices in light of evidence that Congress has rejected cigarette regulation other than labeling); cf. Jody Freeman, Why I Worry About UARG, 39 HARV. ENVTL. L. REV. 9, 16 (2015) (noting that after Massachusetts v. EPA, 549 U.S. 497 (2007), the major question canon appeared to be dead or in repose). 386. See Heinzerling, supra note 384, at 1946 (defining the canon as promising skepticism toward agency interpretations of ?long extant statutes? as authorizing regulation in an area of ?vast economic and political significance?) (internal quotations omitted). 387. See Buzbee, supra note 311, at 75 (characterizing this canon as ?anti-regulatory?). 388. See Heinzerling, supra note 384, at 1953?54 (discussing the inconsistency between UARG, 573 U.S. 302 (2014), and Massachusetts v. EPA, 549 U.S. 487 (2007)). the expense of the philosophy behind the CAA.389 This canon constitutes a general principle favoring adaptation of the CAA to the elite opinion emanating from the law and economics movement.390 In spite of the Court?s unity on the need to conform the statute to the prevailing principles of the law and economics movement, the Court remains divided on how to resolve cases. The only time in the last decade where the Court managed a unanimous CAA ruling?AEP?involves following precedent slighting text in favor of quasi-constitutional judicial lawmaking.391 Thus, the cases suggest a willingness to adhere to judicial policy, but no consensus on whether to follow the overall policy behind the CAA. V. Lessons for Dynamic Statutory Interpretation In this Part, we normatively critique the Court?s dynamic interpretation with a goal of advancing the art of dynamic statutory interpretation. We focus on how and when judges should adapt statutes to new problems with consideration of the propriety of judges updating statutes to reflect changes in elite or political opinion. A. Purpose as Dynamic Archaeology William Eskridge, the leading proponent of dynamic statutory interpretation, does not claim to have answered the key normative question that the existence of dynamic statutory interpretation 389. See Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015) (finding that cost should be a factor in deciding whether to regulate power plans and failing to discuss health and safety considerations? role in the regulatory process). 390. See generally ESKRIDGE, supra note 10, at 297, 301 (discussing the idea of statutory canons as an expression of judicial ideology and some canons as responding to the scarcity concerns at the heart of law and economics). 391. See Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 423 (2011) (following Milwaukee II, 451 U.S. 304 (1981), in holding that the CAA supplants the need for federal common law claims related to regulating emissions). raises: how and when should judges dynamically construe Eskridge presents dynamic interpretation as an alternative to both intentionalism and purposivism, which he characterizes as archaeological approaches.393 He concludes that purposivism, like intentionalism, ?can establish no connection with majority-based preferences in the hard cases.?394 At the same time, he describes implementing the legislature?s ??general intent? about the goals of a statute? as a form of dynamic interpretation.395 And he favors ?bending? the statute?s literal terms in order to achieve this general intent in adapting the statute to changing circumstances.396 Eskridge?s position suggests the possibility that judges can adapt a statute to new circumstances by using the values embedded in the statute?s goals to guide the adaptation and that doing so conforms to both the precepts of a ?faithful agent? theory of statutory interpretation and the exigencies of dynamic interpretation.397 This means that archaeological and dynamic statutory approaches overlap when a court uses a very general congressional intent to decide how to adapt a statute to a new problem.398 We might call this ?dynamic purposivism.? 392. See ESKRIDGE, supra note 10, at 107?08 (identifying the normative issues raised by an understanding of dynamic statutory interpretation as whether it is justifiable and if so when and how it should be used). 393. See id. at 13, 25?34 (characterizing discovery of congressional intent through text and purpose as ?archaeological? and explaining why purposivism fails as a ?foundational theory of statutory interpretation?). 394. Id. at 26. 395. See id. at 121 (pointing out that serving a statute?s goals requires dynamic interpretation as circumstances change in order to conform to ?general intent?); see also Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 249?52 (1986) (advocating adherence to statutory purpose as an antidote to rent-seeking). ESKRIDGE, supra note 10, at 121. 397. See supra note 396 and accompanying text; Manning, supra note 20, at 9 (explaining that purposivism allows ?federal judges to fulfill their presumed duty as Congress?s faithful agents?). 398. See ESKRIDGE, supra note 10, at 26 (characterizing purposivism as ?attractive? because it both ?allows a statute to evolve? and ties ?interpretation to original legislative expectations?). One of us has argued previously that courts should construe statutes to effectuate their stated purposes, at least where the statute is ambiguous, primarily on the grounds that stated purposes are likely to reflect goals enjoying broad public support.399 This argument suggests that dynamic statutory interpretation should follow the general intent of the enacting Congress when possible. Eskridge?s suggestion that judges might appropriately bend text to dynamically interpret statutes in keeping with their purposes would support Justice Stevens? dissent in Adamo.400 The term ?emission standard[]? might most naturally indicate a numerical limit on the amount of air pollution, but perhaps the Court should have creatively read the term to include a work practice requirement that has the effect of limiting air pollution in order to allow the CAA to meet its goals.401 It is linguistically plausible to read the term ?emission standard? as including any requirement that has the effect of reducing emissions, and such a reading would avoid the problem of hindering the enforcement of a properly enacted work practice standard.402 Eskridge?s claim that neither purposivism nor intentionalism connects results to majority preferences in hard cases suggests an acknowledgment that they can do so in easy cases.403 From the standpoint of purposivism and intentionalism, Massachusetts v. EPA should have been an easy case. 399. See Driesen, supra note 86, at 98; see also Macey, supra note 395, at 250 (claiming that a statute?s stated purpose will almost always be ?public-regarding?). 400. Adamo Wrecking Co. v. United States, 434 U.S. 275, 293?307 (1978) (Stevens, J., dissenting); cf. ESKRIDGE, supra note 10, at 50?55 (discussing dynamic interpretation of a prohibition on immigration of people with a ?mental defect? to permit immigration of homosexuals in spite of original expectation that the term would exclude them from the U.S.). 401. See Adamo, 434 U.S. at 294?95 (Steven, J., dissenting) (arguing that the term ?emission standard? should be interpreted to allow the requirement to water down asbestos prior to demolition because this requirement has the ?effect? of ?curtail[ing] the quantity of asbestos . . . emitted?). 402. See id. at 306 (pointing out that the majority?s reading makes work practice standards unenforceable). 403. See supra note 396 and accompanying text. This case may have divided the Court not because it is hard to discern what the enacting Congresses intended based on purposivism and intentionalism (as required by the archaeological approach), but because applying the statute faithfully to this particular new problem puts judges in the uncomfortable position of deciding an important question that is politically controversial now. This adaptive aspect of Massachusetts v. EPA, not textual ambiguity or any legitimate doubt about the CAA?s purpose, may explain why it generated a 5?4 decision.404 Justice Stevens wrote about the congruity of adaptation to a new problem with following Congressional intent in his opinion for the Court: While the Congresses that drafted ? 202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of ? 202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence.405 Justice Stevens did not explain why failing to apply the CAA to greenhouse gases renders the statute obsolete, but the answer is plain enough. The CAA is intended to protect public health and the environment, and it cannot do so absent coverage of greenhouse gases. Thus, this passage can be read as supporting construing general capacious language naturally to allow adaptations serving the statute?s purposes. Although the dissent?s statutory argument on the merits is cast in terms of deference to EPA, the dissent on standing (for the same four Justices) suggests a desire to follow the policy judgment of current elected officials.406 Justice Scalia has elsewhere expressed concern that adaptive interpretation might prevent statutes from dying a natural death and therefore interfere with the prerogatives of new Congresses.407 This conservative desire to 404. See Massachusetts v. EPA, 549 U.S. 497, 528?30 (2007). 405. Id. at 532. 406. See id. at 535 (Roberts, J., dissenting) (noting ongoing consideration of climate disruption in Congress and the Executive Branch and describing the litigation as an expression of dissatisfaction with the elected branches? progress on the issue). 407. See K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 324?25 (1988). avoid expansive interpretation of regulatory statutes might help explain why textually strained arguments appeared sensible to dissenters who often find much more constraint in more ambiguous texts.408 All of this suggests that dynamic statutory interpretation based on the judges? views becomes inevitable when the statute and its purpose bear an uncertain relationship to the problem at hand, but that in cases where the text or purpose bear pretty plainly on a new issue before the Court, dynamic purposivism remains an available option. Indeed, the faithful agent theory (that the Courts should be a ?faithful agent? of the enacting Congress) would suggest that the dissenters erred because they should have simply applied the text and purpose to the new pollutant.409 In other words, recognizing that dynamic interpretation based on the judges? views becomes inevitable in hard cases does not rule out the possibility that dynamic purposivism can establish a connection to majority preferences in easy cases. Legislation usually attempts to govern the future by establishing broad general principles that apply to future circumstances, not through exclusive examples.410 Thus, the CAA is about air pollutants, substances that harm public health and the environment when emitted into the air, not just about the particular pollutants causing the problems that Congress knew about in 1970.411 The rule of law suggests that the Court should 408. Compare Massachusetts, 549 U.S. at 556?60 (Scalia, J., dissenting) (advancing a textually strained interpretation of ?air pollutant?), with Michigan v. EPA, 135 S. Ct. 2699, 2706?07 (2015) (majority opinion) (Scalia, J.) (reading the phrase ?appropriate and necessary? as requiring consideration of cost and declining to defer to EPA?s contrary interpretation under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)), and EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 542 (2014) (Scalia, J., dissenting) (interpreting the requirement that EPA promulgate a federal implementation plan ?at any time within 2 years? after disapproving a SIP as not permitting exercise of that authority prior to giving states additional guidance not explicitly required by the CAA). 409. See Manning, supra note 20, at 9. 410. See Pub. Citizen v. U.S. Dep?t of Justice, 491 U.S. 440, 475 (1989) (?[Congress] usually does not legislate by specifying examples, but by identifying broad and general principles that must be applied to particular factual instances?). 411. See Massachusetts, 549 U.S. at 506 (quoting the relevant statutory follow the statute?s text and purpose when they provide an answer to the question before them, as it did in Massachusetts v. EPA. B. How and When to Adapt Statutes to Changes in Elite and Political Opinion It may appear troubling to Justices to let legislation apply to new problems within the ambit of applicable statutory language or purpose, when the current legislature would not endorse the result. That problem, we have suggested, caused a 5?4 split in Massachusetts v. EPA. Scalia?s concern about preserving the prerogatives of the current Congress cannot supply an adequate answer to the question of how to address a split between current political opinion and the opinion of the drafters of an old statute. No matter what the Court does, congressional prerogatives remain intact. Congress remained free, after Massachusetts v. EPA, to pass legislation forbidding federal regulation of greenhouse gases.412 And had the Court held that the CAA currently does not authorize regulation of greenhouse gases, Congress would remain free to override that decision and authorize standards limiting greenhouse gas emissions. The concept of ?congressional prerogative? must refer to the right to pass legislation, which is a right of the institution as a whole, not a right belonging to an individual member or a faction within the Congress. When the Court issues holdings contrary to statutory purpose and when the enacting coalition remains in power in Congress and the White House, judicial decisions may not matter very much. As Hancock and Adamo illustrate, the congressional coalitions that enacted the original statute can override judicial decisions contrary to the enacting coalition?s intentions to correct the Court?s misreading.413 Hence, the Court?s deviations from congressional provisions, which require regulation of air pollutants defined as substances emitted into the air that endanger public health and the environment rather than list particular substances). 412. See id. at 533?35. 413. See United States v. Pa. Envtl. Hearing Bd., 584 F.2d 1273, 1287 n.22 (3d Cir. 1978) (recognizing that the 1977 Amendments superseded Hancock v. intent in Hancock and Adamo had a very limited impact, because Congresses that consistently favored environmental protection promptly superseded these decisions.414 But when the enacting coalition does not remain in power, judicial decisions, even incorrect ones, may matter a lot. The Court?s CAA decisions have become more important lately, precisely because political opinion has become divided and the prospects for legislative correction of judicial decisions correspondingly diminished. In this context, the policy impacts of the Court?s decisions about how to adapt an old statute to changing opinions and circumstances are sharpened. The analysis above suggests that the rule of law requires that judges follow the general intention of the enacting Congress even when adapting the statute to a new problem that Congress did not specifically consider. The Massachusetts v. EPA dissent did not follow the law, nor would its opinion preserve some threatened prerogative of Congress as a whole. Instead, the dissenting Justices voted, in effect, to conform the statute to the views of much of the Republican Party.415 Judges should not conform a statute to current political opinion when it matters?when political opinion is too divided to allow an override?because in that circumstance they can only conform the statute to one party?s opinion not to a widely shared political preference. Instead, judges should follow statutory purpose and text revealing an intention about the matter before them, even when the consensus undergirding the original statute has shattered. But in cases where such a general intention does not provide clear guidance about how to resolve an issue before the Court, the Court must make a policy decision about how the statute should apply to the new problem. In other words, sometimes dynamic statutory interpretation that reflects changes in views is inevitable because, as Eskridge argues, archaeological approaches sometimes Train, 426 U.S. 167 (1976)); United States v. Ethyl Corp., 576 F. Supp. 80, 82 (M.D. La. 1983), rev?d on other grounds, 761 F.2d 1153 (5th Cir. 1985), cert. denied, 474 U.S. 1070 (1986). 414. See supra note 413 and accompanying text. 415. See Massachusetts v. EPA, 549 U.S. 497, 560 (2007) (concluding that EPA should be granted discretion in deciding not to regulate greenhouse gases and noting that the ?alarm over global warming may or may not be justified?). provide no convincing connection to the intentions of the enacting Congress.416 As a practical matter, judges will tend to resolve such open questions based on their own views. Such a practice raises constitutional concerns, which we analyze, but do not completely resolve.417 The Court has frequently rejected judicial policymaking and suggested it is constitutionally suspect.418 Doctrinally, this view emerges perhaps most clearly in cases disfavoring the creation of federal common law.419 But if the Constitution disfavors judicial policymaking and congressional intent does not resolve a case, what should a judge do? In practice, judges tend to enact the views of the elites of which they are a part into law.420 The CAA case study provides examples of this tendency in what we might call the ?law and economics cases??the cases construing ?appropriate and necessary? and the Good Neighbor Provision to embrace consideration of cost.421 These cases echo the Lochner-era cases, discussed by Eskridge, in which the Supreme Court conformed the antitrust statutes to elite views by using them to authorize injunctions against labor actions.422 In all of these cases, the dynamic statutory constructions conformed statutes to fairly well developed views amongst intellectual and policymaking elites. 416. See ESKRIDGE, supra note 10, at 14. 417. Cf. id. at 108 (admitting that he cannot fully answer the question of how judges should conduct dynamic statutory interpretation). 418. See, e.g., Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1977) (stating that judges must ?put aside? their views of the wisdom of a congressionally chosen course of action in interpreting a statute). 419. See, e.g., Milwaukee II, 451 U.S. 304, 312?13 (1981) (stating that federal courts, ?purposefully insulated from democratic pressures,? normally lack authority to develop rules of decision). 420. See ESKRIDGE, supra note 10, at 82 (discussing how judges created the federal labor injunction in conjunction with other legal elites). 421. See supra notes 352, 367 and accompanying text. 422. See ESKRIDGE, supra note 10, at 82 (identifying the roots of the labor injunction in the ?economic ideology held by legal elites?); cf. David M. Driesen, Regulatory Reform: The New Lochnerism?, 36 ENVTL. L. 603, 614?21, 626?29 (2006) (discussing parallels between Lochner-era statutory interpretation and judicial support for CBA under environmental statutes). This approach to dynamic statutory interpretation raises constitutional concerns, because it seems to conflict with popular sovereignty. In the case of the CAA, opinion polls indicate that the public does not generally buy into the balancing approach that has captured the imagination of the elites. The labor injunction cases harmed the reputation of the Lochner-era Court, because ideological decision-making appears illegitimate, and Congress repudiated many of these cases on several occasions, finally leading the Court to renounce its elitist approach to antitrust law.423 The idea that popular opinion should govern the resolution of issues requiring dynamic statutory interpretation draws support from the Constitution?s preamble, which states that ?we, the people . . . establish? the Constitution and by its provisions establishing policymaking authority in an elected Congress and, to some extent, in an elected President.424 The idea that the entire government derives its authority from the people suggests that the Court should follow popular rather than elite views. On the other hand, the Constitution tempers popular democracy, reflecting some anxiety about the possibility of democratic excess. These anxieties led to creation of the Senate, the electoral college, the separation of powers, and an unelected judiciary with lifetime tenure.425 For these reasons, it is hard to 423. See Milk Wagon Drivers? Union v. Lake Valley Dairy Prod., Inc., 311 U.S. 91, 101?03 (1940) (discussing legislative findings that the Court had largely nullified Clayton Act restrictions on the labor injunction and holding that Congress had drastically curtailed this practice in the Norris LaGuardia Act); cf. ESKRIDGE, supra note 10, at 95?104 (providing a more nuanced account of the labor injunction cases and congressional efforts to temper them). 424. See U.S. CONST. pmbl., arts. I?II; see generally BRUCE ACKERMAN, WE THE PEOPLE (1991); LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004); Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045 (2001). 425. U.S. CONST. art. I, ? 3 (requiring legislators to choose Senators); id. art. II, ? 1 (providing that an electoral college select the President); id. art. II, ? 2 (providing for Presidential appointment of Supreme Court Justices); id. art. III, ? 1 (providing lifetime tenure for Supreme Court Justices); id. amend. XVII (providing for popular election of U.S. Senators, but leaving the number at two per state regardless of population). See generally JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980) (trying to reconcile the argue that the Constitution wholly precludes independent elitist policymaking by the judiciary, however troubling that might be.426 We have some doubts about whether the Court could accurately follow current popular views in resolving questions that past congressional intent cannot resolve even if it chose to do so. Opinion polls can be unreliable and may not track the issues before the Court with sufficient precision. Yet, some awareness by judges that their most natural inclinations may prove at odds with popular views should temper their approach to dynamic statutory interpretation. The tendency of judges to follow elite views appears most troubling when it influences the outcomes in cases that do not pose new problems and therefore do not seem to require dynamic statutory interpretation. The law and economics cases appear troubling in part because the problems they dealt with, while perhaps not resolved clearly by statutory text, were anticipated by Congress.427 One would expect the CAA?s philosophy, which reflects popular opinion, rather than the judiciary?s elitist approach to control such cases. Dynamic statutory interpretation based on elite views seems more appropriate when confronting a new problem not anticipated by Congress, such as the problem of the scope of greenhouse gas regulation that the UARG Court confronted. Chevron, whatever its weaknesses, does provide a resource for ameliorating some of the dilemmas arising in cases demanding or tending to trigger dynamic statutory interpretation.428 The Court ?countermajoritarian? nature of judicial review with democracy); JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (same); Deni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897 ( 2005 ) (critiquing popular constitutionalism as insufficiently attentive to problems of lack of informed popular participation and the ability of elites to manipulate public opinion). 426. See Fareed Zakaria, America?s Democracy has Become Illiberal, WASH. POST (December 29, 2016), https://www.washingtonpost.com/opinions/america-isbecoming-a-land-of-less-liberty/2016/12/29/2a91744c-ce09-11e6-a747d03044780a02_story.html?noredirect=on&utm_term=.4208ce175a10 (last visited Dec. 4, 2018) (pointing out that Alexander Hamilton expected lawyers and other professionals to make sure that democracy served broad national interests rather than special interests) (on file with the Washington and Lee Law Review). 427. See supra notes 333, 345, 346, 352, 367 and accompanying text. 428. See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842?43 could defer to EPA, instead of acting on its own when the statute is ambiguous.429 But the CAA cases involving Chevron deference suggest that Chevron has not constrained ideological decision-making, because the Justices apply it so selectively.430 They refuse to defer to the Obama EPA?s interpretation of the completely open-ended clause ?appropriate and necessary? but many of them find a provision defining a pollutant as including any substance emitted into the ambient air sufficiently ambiguous to justify deference to the Bush EPA.431 One of us has suggested that the Roberts Court reflects, to some degree, the polarization of our times in its constitutional decision-making.432 This case study suggests that the same thing has happened in the context of an extraordinarily detailed and prescriptive statute, the CAA. Increasingly, these divisions occur in archaeologically easy cases (like Massachusetts v. EPA), not just in hard ones. And this division often occurs as the Justices engage in dynamic statutory interpretation in cases that might be resolved fairly easily by intentionalism. While Eskridge is surely right that dynamic statutory interpretation based on judicial views of sensible adaptation is inevitable in hard cases, it is troubling to see it have such a strong influence in easy ones. VI. Conclusion While statutory text and purpose played a major role in the CAA?s early years, increasingly the Court issues rulings divided (1984) (articulating the two-step framework for reviewing agency statutory interpretation). 429. See id. at 843. 430. Cf. Connor N. Raso & William N. Eskridge, Jr., Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 COLUM. L. REV. 1727, 1741, 1784 (2010) (finding in a study of 667 cases decided between 1984 and 2006 that ?ideology . . . correlates significantly with how Justices vote on deference doctrine?). 431. Compare Michigan v. EPA, 135 S. Ct. 2699, 2706?07 (2015) (finding EPA?s interpretation of appropriate and necessary as not requiring consideration of cost unreasonable), with Massachusetts v. EPA, 549 U.S. 497, 558 (2007) (Scalia, J., dissenting) (characterizing the CAA?s definition of air pollution as ambiguous and arguing that the Court should therefore defer to EPA). 432. See KECK, supra note 300, at 13 (finding the Justices ?polarized along partisan lines, but not as badly as members of Congress?). II. The Clean Air Act........................................................... 1788? A . Key Statutory Features ........................................... 1788? B. The Evolution of Philosophy Toward Clean Air ..... 1791? C. Global Climate Disruption ...................................... 1796? D. Summary of Background......................................... 1799 ? III. Purpose , Text, and Judge-Made Law : The Court's Interpretation of the Clean Air Act from 1970 to 2004 ........................................................... 1799? A. Purpose and Text in Statutory Interpretation ....... 1799? B. Text and Purpose: 1970 ? 1980 ................................. 1802 ? C. The Decline of Purposivism and the Rise of Judicial Policymaking in the 1980s . ................... 1810 ? D. The Rise of Textualism: 1990 - 2004 ........................ 1819 ? E. Summary of 1970 -2004 ........................................... 1825 ? IV. Climate Disruption , Elite Thinking, and the Court: Dynamic Statutory Interpretation .................... 1826 ? A. The Supreme Court and Climate Disruption ......... 1827 ? B. Adaptation to Elite Views ....................................... 1835 ? C. Summary Description of the Evolution of the Supreme Court's Approach to Interpreting the Clean Air Act ..................................................... 1843 ? V. Lessons for Dynamic Statutory Interpretation ............ 1846 ? A. Purpose as Dynamic Archaeology ........................... 1846 ? B. How and When to Adapt Statutes to Changes in Elite and Political Opinion ...................................... 1851 ? VI. Conclusion ...................................................................... 1856 ? 19 . See Clean Air Act Amendments of 1990 , Pub. L. No. 101 - 549 , 104 Stat. 2399 (codified as amended at 42 U .S.C. ? 7401 ( 2012 )). 20 . See , e.g., John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV . 1 , 7 ( 2001 ) (stating that ?near the close of the twentieth century . . . the 'new textualism' called . . . strong purposivism? into question) . 21. CASS R. SUNSTEIN , THE COST-BENEFIT STATE : THE FUTURE OF REGULATORY PROTECTION 3 ? 18 ( 2003 ). 34 . See id. (explaining that these standards are to be based on the ?maximum achievable control technology?) . 35 . See id. at 1080 (noting that the second stage of regulation is ?health-based? as it was prior to the 1990 Amendments) . 36 . 42 U.S.C. ?? 7604 ( a ), 7607 (b). 37 . See , e.g., Errol Meidinger, On Explaining the Development of 'Emissions Trading' in U.S. Air Pollution Regulation, 7 L . & POL 'Y 447 , 451 ( 1985 ) a modern industrial state?) . 38 . See U.S. Steel Corp. v. EPA , 444 U.S. 1035 , 1038 ( 1980 ) (Rehnquist , J. , Control-Compelling Versus Site-Shifting, 74 IOWA L. REV. 1 , 10 ( 1988 ) (discussing the PSD program's structure and goals) . 39 . See Util . Air Regulatory Grp. v. EPA , 573 U.S. 302 , 309 ( 2014 ) (describing the PSD program's BACT provisions ); Alaska Dep't of Envtl. 61. See Unfunded Mandates Reform Act of 1995 , Pub. L. No. 104-4 , ? 202 ( a ), 109 Stat. 48 ( codified as amended at 2 U .S.C. ? 1532 ( 2018 )). 62 . See , e.g., Exec . Order No. 12 , 866 ? 1 (b)(6), 58 Fed . Reg. 51 , 735 (Oct. 4 , 1993 ) (stating that a regulation's benefits should ?justify? the costs); see also Lisa Heinzerling , Quality Control : A Reply to Professor Sunstein, 102 CALIF. L. REV. 1457 , 1462 ( 2014 ) (critiquing the views of President Obama's first head of OIRA, Cass Sunstein) . 63 . See Andrew McFee Thompson , Comment, Free Market Inconsistency , 45 EMORY L.J. 1329 , 1329 ? 30 ( 1996 ) (noting that by the time of the environmental statutes) . 65 . See Massachusetts v. EPA , 549 U.S. 497 , 509 ( 2007 ) (noting that in 1990 activities are increasing the temperature) . 66 . See id. at 521-23 (referencing the scientific reports documenting these consequences) . 67. See id. at 545 (Roberts, C.J. , dissenting) ( noting that 80% of greenhouse gas emissions ?originate outside the United States?). 68. See Global Change Research Act of 1990 , Pub. L. No. 101 - 606 , 104 Stat. 3096 (establishing a program ?aimed at understanding and responding to global L. 100 - 204 , 101 Stat. 1331, Title XI (codified in note following 15 U .S.C. ? 2901 ) to make diplomatic efforts to address it ). 69. Cf . 42 U.S.C. ? 7602 (h) ( 2012 ) (defining welfare effects to include effects on climate) . 70. Montreal Protocol on Substances that Deplete the Ozone Layer, Sept . 16 , 1987 , 1522 U.N.T.S. 29 (U.S. ratification Apr. 21 , 1988 ). 71 . See Massachusetts, 549 U.S. at 508-09 ( noting that the IPCC ?published its first comprehensive report? in 1990 and that President Bush signed the United Nations Framework Convention on Climate Change in 1992). 72. United Nations Framework Convention on Climate Change, May 9 , 1992 , 1771 U.N.T.S. 107 (U.S. ratification Oct. 15 , 1992 ). 73 . See Massachusetts, 549 U.S. at 455 (mentioning the Framework reduction commitments) . 74 . Kyoto Protocol to the United Nations Framework Convention on Climate Change , adopted Dec. 11 , 1997 , 2303 U.N.T.S. 162 ( entered into force Feb . 16 , 2005 ). 75 . Letter to Members of the Senate on the Kyoto Protocol on Climate Change , 37 WEEKLY COMP. PRES. DOC. 444 (Mar. 13 , 2001 ). 76 . See , e.g., RICHARD ELLIOT BENEDICK , OZONE DIPLOMACY : NEW DIRECTIONS IN SAFEGUARDING THE PLANET ( 1998 ) (describing the Reagan Administration's international leadership in addressing stratospheric ozone depletion) . 332 . 42 U.S.C. ? 7410(a)(2)(D)(i)(I). 333 . See North Carolina, 531 F. 3d at 908 (stating that EPA's program to significantly to nonattainment). 334. See supra notes 106-107 . 335 . See EPA v. EME Homer City Generation, L.P. , 572 U.S. 489 , 500 ( 2014 ); see also EME Homer City Generation , L.P. v. EPA, 696 F.3d 7 , 14 (D.C. Cir . 2012 ) (citing Michigan v . EPA , 213 F. 3d 663 (D.C. Cir . 2000 )) (discussing the D .C. EPA , 531 F. 3d 896 (D.C. Cir . 2008 ), vacated, 572 U.S. 489 ( 2014 ). 336 . See Homer City, 572 U.S. at 544 n.10 (citing Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals , 76 Fed. Reg. 48271- 72 ( Aug . 8, 2011 ) (codified at 40 C.F.R. pts. 51 , 52 , 72 , 78 , 97)). 337 . See North Carolina v. EPA , 531 F.3d 896 , 906 -08 (D.C. Cir . 2008 ) neighboring states' attainment) . 348 . 135 S. Ct . 2699 ( 2015 ). 349 . See id. at 2711-12 (citing 42 U.S.C. ? 7412(n)(1)(1) ( 2012 )). 350 . See id. at 2705 (explaining that EPA decided to regulate coal and oil-fired environment? and ?controls were available to reduce these emissions?). 351. See id . at 2705-06 ( explaining that EPA ?concluded that 'costs should not Performance for Fossil-Fuel-Fired Electric Utility, 77 Fed . Reg. 9326 ( Feb . 16, 2012 ) (codified at 40 C.F .R. pts. 60 , 63))). 352 . See id. at 2707 (characterizing the phrase ?appropriate and necessary? as capacious (quoting 42 U .S.C. ? 7412(n)(1)(A) ( 2012 ))). 353 . See Indus . Union Dep't, AFL-CIO v . Am. Petroleum Inst. , 448 U.S. 607 , 615 ( 1980 ) (plurality opinion) (interpreting a directive to regulate when places of employment? to require a finding of significant risk ). 354. See Michigan , 135 S. Ct . at 2718 (Kagan, J., dissenting) ( arguing that 370 . See, e.g., Michigan v . EPA , 135 S. Ct . 2699 , 2709 ( 2015 ). 371. Supra Tables 1 and 2 . 372. See , e.g., Union Elec . Co., 427 U.S. at 258 ( using both the ?language and technological or economic infeasibility?) . 373 . See , e.g., Pennsylvania v . Del. Valley Citizens' Council , 478 U.S. 546 , 562- 68 ( 1986 ) (citing to other cases to derive a common-law interpretation of reasonable attorney's fees) . 374 . See , e.g., id. at 548 . 375. See Chevron U.S .A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837 , 865


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David M. Driesen, Thomas M. Keck, Brandon T. Metroka. Half a Century of Supreme Court Clean Air Act Interpretation: Purposivism, Textualism, Dynamism, and Activism, Washington and Lee Law Review, 2019,