It was a battle about words. To be exact, the words “air pollutant.”
In Massachusetts v. Environmental Protection Agency, the Bay State sought to force the EPA to regulate greenhouse gases, such as carbon dioxide, as “air pollutants” under federal law. That may sound straightforward enough – if something causes global warming, isn’t it a pollutant? – but when it comes to environmental law, words are rarely simple.
In the language of environmental law, everyday smog is known as the coefficient of haze. Federal and state authorities never drain a swamp; they dewater it. And in the realm of clean air, regulators like to cite the odor threshold; that is, the point at which a substance in the air can be smelled.
Massachusetts v. EPA involved the Clean Air Act, which empowers the EPA to regulate any “air pollutant.” The Act defines air pollutant as:
any air pollution agent . . . including any physical, chemical . . . substance or matter which is emitted into . . . the ambient air.
In their efforts to slice and dice these words, the parties ended up giving all of us a textbook lesson in the canons of construction; that is, the established rules for interpreting statutes (canon is an Old English word referring to a rule, particularly one laid down by a church – hence canon law is the name for the body of ecclesiastical law).
The Grand Canon
The most basic canon is the Plain Meaning Rule: words in a statute should, if possible, be given their “plain” or “literal” meaning. On that score, Massachusetts argued in its brief that the word “any” in the above definition (as in “any physical, chemical . . . substance”) is an expansive word that both “bespeaks breadth” and “signals breadth.” Presumably, they mean a breadth of clean air.
But how broad is “any”? It’s not the same thing as “every”; there’s a big difference between “is anyone there?” and “is everyone there?” The word “any” can be used expansively, but that is not its only “plain” interpretation. Dictionaries, unfortunately, are of little use on such questions. Black’s Law Dictionary, for example, offers the distinctly unhelpful definition of “any” as “some; one out of many; an indefinite number” – thus managing to leave the reader more confused than when he started.
Stroud’s Judicial Dictionary says that “ ‘any’ is a word which excludes limitation or qualification . . . [b]ut its generality may be restricted by the subject matter or the context.” In other words, “any” is expansive, except when it isn’t.
Include Me In
Not very conclusive – but then, the battle was just getting started. Massachusetts went on to focus on the word “including,” arguing that since an “air pollutant” is said to “include” any chemical or physical substance emitted into the air, then it must include carbon dioxide. After all, you and I emit carbon dioxide into the air every time we breath. Although Massachusetts did not use this term in its brief, it could be said to be invoking the canon of noscitur a sociis (Latin for “known from associates”); essentially, that the meaning of a statutory term must be ascertained by the surrounding words.
The EPA countered that the word “including” is limited by the term “air pollution agent,” which immediately precedes it. On this reading, an air pollutant is not just any chemical or physical substance emitted into the ambient air, but only one that also qualifies as an “air pollution agent.” Massachusetts, not surprisingly, argued that “including” and the words following it, expand the meaning of “air pollution agent” and not the other way around.
And so the battle turned from the meaning of “air pollutant” to that of “air pollution agent.” Unfortunately – and a little strangely – the Clean Air Act does not define “air pollution agent” or even “air pollution.” According to Massachusetts, the statute’s purpose of protecting “public health and welfare” demonstrates that greenhouse gases should be considered “air pollution agents.” Another example of noscitur a sociis.
In his dissenting opinion, which supported the EPA’s position, Justice Scalia turned to the dictionary definition of “pollute” as “to make or render impure or unclean.” This is true enough, pollution ultimately derives from the Latin lutum, or mud. Even today, scientists refer to certain kinds of clay as “lute.” In any event, Scalia’s argument was that carbon dioxide cannot be an agent of “air pollution” because, rather than being an impurity, it is a natural component of our atmosphere.
One can go back and forth like this forever – or at least until the sea level reaches your lower lip. That’s the thing about the plain meaning of statutes: plainness is in the eye of the beholder. A good example of this is the 1931 Supreme Court case of McBoyle v. United States, in which McBoyle had been convicted under the National Motor Vehicle Theft Act for transporting a stolen airplane across state lines. The case hinged on whether an airplane was a “motor vehicle.” The government pointed to the statute which defined “motor vehicle” as including cars, trucks “or any other self-propelled vehicle not designed for running on rails.” Literally, that would seem to include aircraft, but the Justices saw things differently. Speaking for a unanimous court, Oliver Wendell Holmes said “in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” There’s literal, and then there’s literal.
When the plain or literal meaning of a statute is not conclusive, courts may look to other canons of construction, like the noscitur a sociis rule we’ve already seen. In the Massachusetts case, the EPA (and other respondents) fired off a number of canons in their attempt to bring the court around to their interpretation.
Theater of the Absurd
First, the agency pointed to the “fundamental canon of statutory construction that the words of a statute must be read . . . with a view to their place in the overall statutory scheme.” For those who prefer Latin, this rule is traditionally known as in pari materia or “upon the same subject”. Using this canon, the EPA pointed out that other federal laws already address global climate change and, therefore, it would be redundant (another statutory no-no) to interpret the Clean Air Act as covering the same ground. Or air, for that matter.
Secondly, a number of States argued in a separate brief that Massachusetts’ interpretation of the Clean Air Act would violate the Absurd Results Canon. This one is sort of a meta-canon; it says that no matter how many other canons support a particular interpretation of a statute, a court should not adopt that interpretation if it leads to absurd results. The States argued the Clean Air Act targets domestic pollution, and that it would be “absurd” to include greenhouse gases, which are an international problem.
Justice Scalia had his own spin on the absurdity argument. In his dissenting opinion, he argued that under Massachusetts’ expansive reading of “air pollutant,” the EPA would have to regulate “everything airborne, from Frisbees to flatulence.” That must be where the odor threshold comes in.
Finally, the EPA invoked the so-called Deference Canon – the rule that courts should generally defer to the interpretations of administrative agencies. This is sometimes known as “Chevron deference,” after the Supreme Court case of Chevron v. Natural Resources Defense Council. But the majority of the Court held that the agency’s failure to address the possibility that greenhouse gases contribute to climate change was not entitled to Chevron deference. In fact, the Court said that the government’s inaction was “arbitrary and capricious.”
Is it just me, or is it getting warm in here?