ENVIRONMENTAL LAW
ASSIGNMENT 11
Statutory Interpretation: Text, Legislative History,
and the Canons of Construction
“There's no hard and fast definition. Interpretation is everything. And where
there is room for interpretation, there is always room for political persuasion.”
Haruki Murakami, 1Q84 (2011)
Reading:
S.D. Warren Co. v. Maine Board of Environmental Protection
CWA §§ 303(c), 401, 502(6), 502(12) & 502(16) (33 U.S.C. §§ 1313(c), 1341, 1362(6),
1362(12) & 1362(16))
Canons of Statutory Interpretation
Wisconsin Public Intervenor v. Mortier
FIFRA §§ 2(aa), 3(a), 11(a)(2) & 24 (7 U.S.C. §§ 136(aa), 136a(a), 136i(a)(2) & 136v)
Notes and Questions:
1.
With this and the next assignment, we take up the principal modes of statutory
interpretation. In this assignment, we will consider textualism (which is the starting point for all
statutory analysis), the “canons of construction” (rules that guide statutory analysis and
resolution of ambiguity), and legislative history (a traditional feature of statutory analysis that
has come under increasing criticism in recent years). In the next assignment, we will turn to the
Chevron doctrine by which the courts—in certain circumstances—give deference to the
implementing agency’s interpretation of the statutes that the agency is charged with
administering. We will see that textualism, the canons, and legislative history all play an
important role in the courts’ decision whether to apply Chevron deference.
Both of the principal cases included in this assignment focus on questions of federal
preemption—specifically the power of states and local governments to impose their own
requirements on entities that are regulated by federal law. In addition to providing examples of
the various means of statutory interpretation, the cases offer another opportunity to consider the
interplay of federal and state law in contemporary environmental policy.
2.
What is the relationship between the Federal Energy Regulatory Commission’s authority
to license the operation of hydroelectric power facilities and “state certification” under section
401 of the Clean Water Act? Do you agree with the Supreme Court’s decision in S.D. Warren
that the states have authority under section 401 to place conditions on the discharges of water
1
impounded by dams? Do you agree with the Court’s explanation of the relationship between
CWA §§ 502(12) and 502(16)?
3.
What is the noscitur a sociis canon of construction? Do you agree with the Court that it
is not helpful to the interpretation of the meaning of the term “discharge” as used in CWA §
502(16)? What would be an example of when the canon would be a useful aid to statutory
interpretation?
4.
Does the Court persuasively distinguish its decision in S.D. Warren from its earlier
decision in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004)?
What are the differences between state certification of “discharges” under section 401 and
regulation of the “discharge of pollutants” under section 402? Under what circumstances do
dams add or not add pollutants to the waters of the United States?
5.
The “canons” are a common feature of statutory interpretation. For your reference, I
have set forth some of the more important canons of construction. A question that frequently
arises is the relationship between the canons of construction and other means of ascertaining the
meaning of federal statutes.
In considering the usefulness of this interpretative tool, please keep in mind the Supreme
Court’s caution that the “[c]anons of construction need not be conclusive and are often
countered, of course, by some maxim pointing in a different direction.” Circuit City Stores v.
Adams, 532 U.S. 105, 115 (2001). Note also the Court’s statement in S.D. Warren that
“uncritical use of interpretive rules is especially risky in making sense of a complicated statute
like the Clean Water Act, where technical definitions are worked out with great effort in the
legislative process.”
6.
Following its reference to noscitur a sociis, the Court in S.D. Warren turned to the
legislative history of the Clean Water Act and rejected the company’s argument that Congress
had inadvertently left the word “including” in section 502(16)’s definition of “discharge” when it
deleted “thermal discharges” from the definition. What was the “lawyer’s argument” that S.D.
Warren was attempting to make? Do you agree with the Court’s analysis of this issue?
7.
Finally, the Court looked to the purposes of the Clean Water Act set forth in section
101(b), as well as to the broad definition of “pollution” in section 502(19), to bolster its
conclusion that applicants for FERC licenses must obtain state certification under section 401.
Do these sections of the Act support the Court’s analysis? Is it appropriate for the courts to
consult the purposes and policies sections of federal statutes to aid in their interpretation of the
more detailed substantive sections of the legislation?
8.
Do you agree with the Supreme Court’s decision in Wisconsin Public Intervenor that
section 24(a) of FIFRA does not preempt local governmental regulation of pesticides and other
substances governed by the Act? Why would Congress want to distinguish between state law
and local law on this question? On the other hand, might Congress want to minimize the risk of
subjecting pesticide manufacturers to hundreds, of not thousands, of different state and local
requirements?
2
9.
Are there any aspects of the Town of Casey’s pesticide ordinance that potentially conflict
with FIFRA? Please note that I edited out the Court’s analysis of the implied preemption and
conflict preemption claims.
10.
Do you agree with the Court that it is usually beneficial to consult the legislative history
of statute, rather than categorically to ignore it? Under what circumstances might the legislative
history persuade a court to interpret a statute in a way that differs from or embellishes the
statutory text?
In thinking about this question, please keep in mind the Supreme Court’s admonition
that, where the meaning of a statute is clear from it text, the courts “need not assess the
legislative history.” Circuit City Stores v. Adams, 532 U.S. 105, 119 (2005) (citing Raztzlaf v.
United States, 510 U.S. 135, 147-48 (1994) ("We do not resort to legislative history to cloud a
statutory text that is clear")).
11.
The legislative history of a statute includes earlier versions of bills that, as amended,
became the law in question, the record of committee and subcommittee hearings, committee
reports on the legislation, and statements made during the floor debates in both houses of
Congress.
The Supreme Court has emphasized that the judiciary should focus on those aspects of
the legislative history that (a) represent the opinions and understandings of the majorities that
voted for the bill in each house; and (b) are likely to be reliable guides to congressional purpose.
Thus, the Court has stated that the reports of the House and Senate Committees with principal
jurisdiction over the legislation and the Conference Report (if there is one) should carry the most
weight. Statements made during the floor debates, although they reflect only the views of
individual members, also have some authority. Testimony by interested citizens and lobbyists
has little significance. As the Court explained in Circuit City:
Legislative history is problematic even when the attempt is to draw inferences from the
intent of duly appointed committees of the Congress. It becomes far more so when we consult
sources still more steps removed from the full Congress and speculate upon the significance of
the fact that a certain interest group sponsored or opposed particular legislation. Cf. Kelly v.
Robinson, 479 U.S. 36, 51 n.13 (1986) ("None of those statements was made by a Member of
Congress, nor were they included in the official Senate and House Reports. We decline to accord
any significance to these statements"). We ought not attribute to Congress an official purpose
based on the motives of a particular group that lobbied for or against a certain proposal—even
assuming the precise intent of the group can be determined, a point doubtful both as a general rule
and in the instant case. It is for the Congress, not the courts, to consult political forces and then
decide how best to resolve conflicts in the course of writing the objective embodiments of law we
know as statutes.
12.
Are you persuaded by Justice Scalia’s criticisms of the resort to legislative history? He
begins his opinion concurring in the judgment in Wisconsin Public Intervenor with the
explanation that the Wisconsin Supreme Court had read the text of the statute correctly, but had
3
incorrectly decided that FIFRA preempted state and local pesticide regulation because it relied
on the legislative history, which confused its analysis.
Is this type of confusion unusual, or does the Wisconsin Supreme Court’s encounter with
FIFRA serve as a cautionary tale for all cases in which a court is tempted to look beyond the text
of a statute to its legislative history? Is legislative history any less reliable (or manipulable) than
the canons of construction?
13.
There is much anecdotal evidence to support Justice Scalia’s position. For example,
when Congress amended the Clean Air Act in 1977, the committee reports on legislation (which
are supposed to inform the members of Congress about the benefits, costs, consequences, and
meaning of the bills on which they will vote) were written after both houses of Congress had
voted. See, e.g., BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR (1981).
It is also common for persons other than the Senators and Representatives (staff members
and lobbyists) to write the words that the member of Congress speaks at the committee hearings
and floor debates. When Congress was debating the Central Valley Project Improvement Act of
1992, Pub. L. No. 102-575, 106 Stat. 4706 (1992)—a law that Congress enacted to bring
environmental balance to the CVP—an attorney for the California State Water Resources
Control Board drafted the following “colloquies” on the potential preemptive effects of the new
law on state water resources management with the hope that unspecified “Senator A” and
“Senator B” would read it on the floor of the Senate:
DRAFT COLLOQUY #1
Wallop (A) & Bradley (B) ??
Senator A:
The State of California, through the implementation of its Long Range
Water Policy Framework, has begun significant actions in the past year
which are designed, through consensus, to improve the availability of
water for all major sectors of California—urban, agriculture and the
environment. These develop solutions to Sacramento-San Joaquin Delta
problems, and the transfer of the CVP to the State. How does the CVP
Improvement Act affect these efforts?
Senator B:
There is nothing in the CVP Improvement Act that would hinder these
actions. The obligations of the Act are designed to complement—not to
interfere with—California's efforts to further develop and coordinate its
water policy.
Senator A:
Is there anything in the CVP Improvement Act that alters Congress's
long standing deference to the states in determining reasonable and
beneficial uses of water?
Senator B:
Nothing in this bill is intended to diminish or expand any authority that
California presently has. Nothing in this bill is a Congressional directive
that is intended to override the authority of California to set standards for
the CVP to the extent that the law now has such authority under federal
4
law, including section 8 of the Reclamation Act, as interpreted by
California v. United States (483 U.S. 645, 1978).
Senator A:
Some of the CVP Improvement Act's provisions put limits on what the
Secretary of the Interior can do with regard to meeting his obligations
under the Act. Is there anything in the Act that would similarly limit the
State of California?
Senator B:
The limitations in the Act with regard to CVP obligations are limitations
only on the specific requirements of the Secretary's responsibilities under
the Act. The State's authority remains unchanged, consistent with the
law as interpreted in California v. United States, 483 U.S. 645 (1978).
Senator A:
Section 3406(b) provides for a cost sharing agreement with the State for
a number of the measures listed in the Act. Public and private entities in
California have already spent a great deal of money for some of these
measures in spite of the fact that the federal government was not able t
come up with its funding share. Will California be able to count these
past expenditures as part of its share of the costs of these measures?
Senator B:
The Secretary is given considerable discretion under the cost sharing
section to work with California in developing an equitable cost sharing
agreement. Past expenditures by California, local agencies, and private
contributions (including contributions of land and water) are certainly a
major factor he must take into consideration in working out equitable
cost sharing provisions with the State of California. The Secretary also
has discretion to spend federal funds before the State agrees to cost
sharing arrangements so that measures urgently needed to mitigate
effects of Central Valley Project operations are not delayed by the State's
current fiscal process.
Draft Colloquy #2
Senator A:
In a colloquy between Congressman Miller and Congressman Studds
regarding the Conference Report on H.R. 429, discussions occurred
regarding the interpretation of Section 3406(b)(1)(B). These discussions
indicated that the Secretary of the Interior must adhere to the
recommendations that are developed by the Fish and Wildlife Service
with respect to instream flow needs for fish and wildlife for all Central
Valley Project streams and rivers and that the Secretary could only
deviate from those recommendations if there is clear and convincing
evidence that an alternative will better suit fish and wildlife needs. Do
you agree with that interpretation of Section 3406(b)(1)(B)?
Senator B:
I do not! This interpretation is not the intent of the Conference
Committee members and is contradicted by the plain language of the
statute.
Congress could have required the Secretary to implement the Service's
recommendations without alternation had we wanted to, but we did not.
The Secretary, not the Director of the Fish and Wildlife Service, makes
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the decision. That decision will be based on the recommendation of the
Fish and Wildlife Service, but will equally reflect many other
recommendations.
14.
The issue of textualism vs. legislative history arose during oral argument in Harbison v.
Bell, 556 U.S. 180 (2009), in which the Supreme Court held that a federal law that grants
indigents the right to court-appointed counsel in habeas corpus actions applies to clemency
proceedings conducted under state law. As described in the New York Times, during the
argument Justices Scalia and Breyer debated the proper use of legislative history:
In an unusually testy argument, the Supreme Court on Monday tried to make sense of a
federal law that provides lawyers to poor inmates on state death rows when their cases move to
federal court. The question for the justices was whether the law also requires the federal
government to pay those lawyers to present clemency petitions to governors and other state
officials.
The Supreme Court has called executive clemency “the ‘fail safe’ in our criminal justice
system.” But there is no constitutional right to counsel for people seeking mercy. The law in
question says lawyers handling federal capital cases must also be paid to represent their clients in
“proceedings for executive or other clemency as may be available to the defendant.” William M.
Jay, an assistant to the solicitor general, said the law applies only to “federal proceedings before a
federal officer.”
Dana C. Hansen Chavis, a federal public defender, told the justices that interpreting the
law to apply only to federal clemency would render its language meaningless in many cases, as
people convicted of state crimes are not eligible for federal clemency. Her client, Edward J.
Harbison, is on death row in Tennessee for beating a woman to death with a marble vase in 1983
when she found him burglarizing her house. The phrase “executive or other clemency,” Ms.
Hansen Chavis added, gave a further indication of Congressional intent. All federal clemency
proceedings take place within the executive branch, she said, and so the words “or other” must
have referred to state proceedings in which other parts of the government play a role in granting
clemency.
Justice Antonin Scalia, who speaks often about the importance of fidelity to statutory
text, liked that point. He was less receptive when Justice Stephen G. Breyer observed that
Representative Conyers, Democrat of Michigan, had said he understood the law to apply to state
clemency proceedings. “I thought this was a federal law,” said Justice Scalia, who is hostile to
judicial consideration of legislators’ statements in determining what laws mean. “Is this a
Conyers law?”
Justice Breyer responded, “He happens to be the person who wrote it.” Justice Scalia
continued to interrogate Justice Breyer as Mr. Jay, representing the government, looked on.
“Did his colleagues know what he said?” Justice Scalia asked.
“Yes, they did,” Justice Breyer responded.
Chief Justice Roberts stepped in. “Counsel, you lead,” he said to Mr. Jay. “We direct our
questions to counsel.”
6
Adam Liptak, Weighing Reach of Law in Appeals for Clemency, N.Y. Times. Jan. 13, 2009.
15.
As we read more about statutes and legislative history, recall these “colloquies” and ask
yourselves whether Justice Scalia might have a good point. Indeed, in response to Justice
Scalia’s persistent criticism of its use of legislative history, the Supreme Court has cautioned:
As we have repeatedly held, the authoritative statement is the statutory text, not the
legislative history or any other extrinsic material. Extrinsic materials have a role in statutory
interpretation only to the extent they shed a reliable light on the enacting Legislature's
understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of
insight into legislative understandings, however, and legislative history in particular is vulnerable
to two serious criticisms. First, legislative history is itself often murky, ambiguous, and
contradictory. Judicial investigation of legislative history has a tendency to become, to borrow
Judge Leventhal's memorable phrase, an exercise in "'looking over a crowd and picking out your
friends.'" See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme
Court Term, 68 Iowa L. Rev. 195, 214 (1983). Second, judicial reliance on legislative materials
like committee reports, which are not themselves subject to the requirements of Article I, may
give unrepresentative committee members—or, worse yet, unelected staffers and lobbyists—both
the power and the incentive to attempt strategic manipulations of legislative history to secure
results they were unable to achieve through the statutory text.
Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 568 (2005).
16.
Justice Scalia has co-authored a book on statutory interpretation: ANTONIN SCALIA AND
BYRON A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS (West 2012).
S.D. WARREN COMPANY v. MAINE BOARD OF ENVIRONMENTAL PROTECTION
Supreme Court of the United States
547 U.S. 370 (2006)
Justice SOUTER delivered the opinion of the Court.
The issue in this case is whether operating a dam to produce hydroelectricity "may result
in any discharge into the navigable waters" of the United States. If so, a federal license under §
401 of the Clean Water Act requires state certification that water protection laws will not be
violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.
I
The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay,
and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower
dams to generate electricity for its paper mill. Each dam creates a pond, from which water
funnels into a "power canal," through turbines, and back to the riverbed, passing around a section
of the river just below the impoundment.
It is undisputed that since 1935, Warren has needed a license to operate the dams,
currently within the authority of the Federal Energy Regulatory Commission (FERC) under the
7
Federal Power Act. 16 U.S.C. §§ 817(1), 792; see also Public Utility Act of 1935, § 210, 49
Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U.S.C. § 799, after a review
that looks to environmental issues as well as the rising demand for power, § 797(e).
Over 30 years ago, Congress enacted a specific provision for licensing an activity that
could cause a "discharge" into navigable waters; a license is conditioned on a certification from
the State in which the discharge may originate that it will not violate certain water quality
standards, including those set by the State's own laws. See Water Quality Improvement Act of
1970, § 103, 84 Stat. 108. Today, this requirement can be found in § 401 of the Clean Water
Act, 86 Stat. 877, 33 U.S.C. § 1341: "Any applicant for a Federal license or permit to conduct
any activity . . . which may result in any discharge into the navigable water[s] shall provide the
licensing or permitting agency a certification from the State in which the discharge originates . . .
." § 1341(a)(1).
"Any certification provided under this section shall set forth any effluent limitations and other
limitations, and monitoring requirements necessary to assure that any applicant for a Federal
license or permit will comply with [§§ 1311, 1312, 1316, and 1317] and with any other
appropriate requirement of State law set forth in such certification, and shall become a condition
on any Federal license or permit subject to the provisions of this section."1 § 1341(d).
In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It
applied for water quality certifications from the Maine Department of Environmental Protection
(the state agency responsible for what have come to be known as "401 state certifications"), but it
filed its application under protest, claiming that its dams do not result in any "discharge into" the
river triggering application of § 401.
The Maine agency issued certifications that required Warren to maintain a minimum
stream flow in the bypassed portions of the river and to allow passage for various migratory fish
and eels. When FERC eventually licensed the five dams, it did so subject to the Maine
conditions, and Warren continued to deny any need of § 401 state certification. After appealing
unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental
Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court
rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial
Court of Maine affirmed. 2005 ME 27, 868 A.2d 210. We granted certiorari, 546 U.S. 933, 126
S. Ct. 415, 163 L. Ed. 2d 316 (2005), and now affirm as well.
II
1
The statutes cross-referenced go to effluent limitations and other limitations, 33 U.S.C.
§§ 1311, 1312, standards of performance, § 1316, and toxic effluent standards, § 1317. As we
have explained before, "state water quality standards adopted pursuant to § 303 [of the Clean
Water Act, 33 U.S.C. § 1313,] are among the 'other limitations' with which a State may ensure
compliance through the § 401 certification process." PUD No. 1 v. Washington Dep't of
Ecology, 511 U.S. 700, 713, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994).
8
The dispute turns on the meaning of the word "discharge," the key to the state
certification requirement under § 401.2 The Act has no definition of the term, but provides that
"[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a
discharge of pollutants."3 33 U.S.C. § 1362(16). It does define "discharge of a pollutant" and
"discharge of pollutants" as meaning "any addition of any pollutant to navigable waters from any
point source." § 1362(12). But "discharge" presumably is broader, else superfluous, and since it
is neither defined in the statute nor a term of art, we are left to construe it "in accordance with its
ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476, 114 S. Ct. 996, 127 L. Ed. 2d
308 (1994).
When it applies to water, "discharge" commonly means a "flowing or issuing out,"
Webster's New International Dictionary 742 (2d ed. 1954); see also ibid. ("[t]o emit; to give
outlet to; to pour forth; as, the Hudson discharges its waters into the bay"), and this ordinary
sense has consistently been the meaning intended when this Court has used the term in prior
water cases. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 364, 109 S.
Ct. 1851, 104 L. Ed. 2d 377 (1989) (describing a dam's "'multiport' structure, which will permit
discharge of water from any of five levels"); Arizona v. California, 373 U.S. 546, 619, n. 25, 83
S. Ct. 1468, 10 L. Ed. 2d 542 (1963) (Harlan, J., dissenting in part) (quoting congressional
testimony regarding those who "'take . . . water out of the stream which has been discharged
from the reservoir'"); United States v. Arizona, 295 U.S. 174, 181, 55 S. Ct. 666, 79 L. Ed. 1371
(1935) ("Parker Dam will intercept waters discharged at Boulder Dam").
In fact, this understanding of the word "discharge" was accepted by all Members of the
Court sitting in our only other case focused on § 401 of the Clean Water Act, PUD No. 1 v.
Washington Dep't of Ecology, 511 U.S. 700, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994). At
issue in PUD No. 1 was the State of Washington's authority to impose minimum stream flow
rates on a hydroelectric dam, and in posing the question presented, the Court said this:
"There is no dispute that petitioners were required to obtain a certification from the State
pursuant to § 401. Petitioners concede that, at a minimum, the project will result in two possible
discharges--the release of dredged and fill material during the construction of the project, and the
discharge of water at the end of the tailrace after the water has been used to generate electricity."
Id. at 711, 114 S. Ct. 1900, 128 L. Ed. 2d 716.
The PUD No. 1 petitioners claimed that a state condition imposing a stream flow
requirement on discharges of water from a dam exceeded the State's § 401 authority to prevent
degradation of water quality, but neither the parties nor the Court questioned that the "discharge
of water" from the dam was a discharge within the ambit of § 401. Ibid. And although the
Court's opinion made no mention of the dam as adding anything to the water, the majority's use
of the phrase "discharge of water" drew no criticism from the dissent, which specifically noted
2
No one disputes that the Presumpscot River is a navigable water of the United States.
The term "pollutant" is defined in the Act to mean "dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water." 33 U.S.C. § 1362(6).
3
9
that "[t]he term 'discharge' is not defined in the [Clean Water Act] but its plain and ordinary
meaning suggests 'a flowing or issuing out,' or 'something that is emitted.'" Id. at 725, 114 S. Ct.
1900, 128 L. Ed. 2d 716 (opinion of Thomas, J.) (quoting Webster's Ninth New Collegiate
Dictionary 360 (1991)).
In resort to common usage under § 401, this Court has not been alone, for the
Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as
having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA,
Water Quality Standards Handbook § 7.6.3, p 7-10 (2d ed. 1994) ("EPA has identified five
Federal permits and/or licenses that authorize activities that may result in a discharge to the
waters[, including] licenses required for hydroelectric projects issued under the Federal Power
Act"); FPL Energy Maine Hydro LLC, 111 FERC P61,104, p. 61,505 (2005) (rejecting, in a
recent adjudication, the argument that Congress "used the term 'discharge' as nothing more than a
shorthand expression for 'discharge of a pollutant or pollutants'"). Warren is, of course, entirely
correct in cautioning us that because neither the EPA nor FERC has formally settled the
definition, or even set out agency reasoning, these expressions of agency understanding do not
command deference from this Court. See Gonzales v. Oregon, 546 U.S. 243, 258, 126 S. Ct.
904, 916, 163 L. Ed. 2d 748, 768 (2006)) ("Chevron deference . . . is not accorded merely
because the statute is ambiguous and an administrative official is involved"); Skidmore v. Swift
& Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944). But even so, the administrative
usage of "discharge" in this way confirms our understanding of the everyday sense of the term.
III
Warren makes three principal arguments for reading the term "discharge" differently
from the ordinary way. We find none availing.
A
The first involves an interpretive canon we think is out of place here. The canon,
noscitur a sociis, reminds us that "a word is known by the company it keeps," Gustafson v.
Alloyd Co., 513 U.S. 561, 575, 115 S. Ct. 1061, 131 L. Ed. 2d 1 (1995), and is invoked when a
string of statutory terms raises the implication that the "words grouped in a list should be given
related meaning," Dole v. United Steelworkers of America, 494 U.S. 26, 36, 110 S. Ct. 929, 108
L. Ed. 2d 23 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511
U.S. 368, 371, 114 S. Ct. 1669, 128 L. Ed. 2d 383 (1994) ("That several items in a list share an
attribute counsels in favor of interpreting the other items as possessing that attribute as well").
Warren claims that the canon applies to § 502(16) of the Clean Water Act, which
provides that "[t]he term 'discharge' when used without qualification includes a discharge of a
pollutant, and a discharge of pollutants." 33 U.S.C. § 1362(16). Warren emphasizes that the
"include[d]" terms, pollutant discharges, are themselves defined to require an "addition" of
pollutants to water. § 1362(12). Since "discharge" pure and simple is keeping company with
"discharge" defined as adding one or more pollutants, Warren says "discharge" standing alone
must require the addition of something foreign to the water into which the discharge flows. And
because the release of water from the dams adds nothing to the river that was not there above the
10
dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the
river.
The problem with Warren's argument is that it purports to extrapolate a common feature
from what amounts to a single item (discharge of a pollutant plus the plural variant involving
more than one pollutant). See Beecham, supra, at 371, 114 S. Ct. 1669, 128 L. Ed. 2d 383. The
argument seems to assume that pairing a broad statutory term with a narrow one shrinks the
broad one, but there is no such general usage; giving one example does not convert express
inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering
with a common feature to extrapolate. It should also go without saying that uncritical use of
interpretive rules is especially risky in making sense of a complicated statute like the Clean
Water Act, where technical definitions are worked out with great effort in the legislative process.
Cf. H. R. Rep. No. 92-911, p 125 (1972) ("[I]t is extremely important to an understanding of [§
402] to know the definition of the various terms used and a careful reading of the definitions . . .
is recommended. Of particular significance [are] the words 'discharge of pollutants'").
B
Regardless, Warren says the statute should, and even must, be read its way, on the
authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 124 S. Ct.
1537, 158 L. Ed. 2d 264 (2004). But that case is not on point. Miccosukee addressed § 402 of
the Clean Water Act, not § 401, and the two sections are not interchangeable, as they serve
different purposes and use different language to reach them. Section 401 recast pre-existing law
and was meant to "continu[e] the authority of the State . . . to act to deny a permit and thereby
prevent a Federal license or permit from issuing to a discharge source within such State." S.
Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a
federally licensed activity "may" result in a discharge ("discharge" of course being without any
qualifiers here), 33 U.S.C. § 1341(a)(1), and its object comprehends maintaining state water
quality standards.
Section 402 has a historical parallel with § 401, for the legislative record suggests that it,
too, was enacted to consolidate and ease the administration of some predecessor regulatory
schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with § 401 in its more specific
focus. It establishes what Congress called the National Pollutant Discharge Elimination System,
requiring a permit for the "discharge of any pollutant" into the navigable waters of the United
States, 33 U.S.C. § 1342(a). The triggering statutory term here is not the word "discharge"
alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring
an "addition" of a pollutant to the water. § 1362(12).
The question in Miccosukee was whether a pump between a canal and an impoundment
produced a "discharge of a pollutant" within the meaning of § 402, see 541 U.S., at 102-103, 124
S. Ct. 1537, 158 L. Ed. 2d 264, and the Court accepted the shared view of the parties that if two
identified volumes of water are "simply two parts of the same water body, pumping water from
one into the other cannot constitute an 'addition' of pollutants," id. at 109, 124 S. Ct. 1537, 158
L. Ed. 2d 264. Miccosukee was thus concerned only with whether an "addition" had been made
11
(phosphorous being the substance in issue) as required by the definition of the phrase "discharge
of a pollutant"; it did not matter under § 402 whether pumping the water produced a discharge
without any addition. In sum, the understanding that something must be added in order to
implicate § 402 does not explain what suffices for a discharge under § 401.
C
Warren's third argument for avoiding the common meaning of "discharge" relies on the
Act's legislative history, but we think that if the history means anything it actually goes against
Warren's position. Warren suggests that the word "includes" in the definition of "discharge"
should not be read with any spacious connotation, because the word was simply left on the books
inadvertently after a failed attempt to deal specifically with "thermal discharges." As Warren
describes it, several Members of Congress recognized that "heat is not as harmful as what most
of us view as 'pollutants,' because it dissipates quickly in most bodies of receiving waters," 1
Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print
compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1,
p. 273 (1973) (remarks of Rep. Clark), and they proposed to regulate thermal discharges less
stringently than others. They offered an amendment to exclude thermal discharges from the
requirements under § 402, but they also wanted to ensure that thermal discharges remained
within the scope of § 401 and so sought to include them expressly in the general provision
covering "discharge." See id. at 1069-1070, 1071. The proposed definition read, "[t]he term
'discharge' when used without qualification includes a discharge of a pollutant, a discharge of
pollutants, and a thermal discharge." Id. at 1071.
Of course, Congress omitted the reference to "thermal discharge," and settled on the
definition we have today. See Federal Water Pollution Control Act Amendments of 1972, §
502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for
thermal pollutants, it merely struck the words "thermal discharge" from 33 U.S.C. § 1362(16)
and carelessly left in the word "includes." Thus, Warren argues, there is no reason to assume
that describing "discharge" as including certain acts was meant to extend the reach of § 401
beyond acts of the kind specifically mentioned; the terminology of § 401 simply reflects a failed
effort to narrow the scope of § 402.
This is what might be called a lawyer's argument. We will assume that Warren is entirely
correct about the impetus behind the failed attempt to rework the scope of pollutant discharge
under § 402. It is simply speculation, though, to say that the word "includes" was left in the
description of a "discharge" by mere inattention, and for reasons given in Part IV of this opinion
it is implausible speculation at that. But if we confine our view for a moment strictly to the
drafting history, the one thing clear is that if Congress had left "thermal discharge" as an
included subclass of a "discharge" under § 502(16), Warren would have a stronger noscitur a
sociis argument. For a thermal discharge adds something, the pollutant heat. Had the list of
examples of discharge been lengthened to include thermal discharges, there would have been at
least a short series with the common feature of addition. As it stands, however, the only thing
the legislative history cited by Warren demonstrates is the congressional rejection of language
that would have created a short series of terms with a common implication of an addition.
12
Warren's theory, moreover, has the unintended consequence of underscoring that
Congress probably distinguished the terms "discharge" and "discharge of pollutants"
deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes
that Congress attempted to tinker with the definition of "discharge" because it wanted to subject
thermal discharges to the requirements of § 401, but not § 402. But this assumption about
Congress's motives only confirms the point that when Congress fine-tunes its statutory
definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U.S. 23, 2930, 118 S. Ct. 285, 139 L. Ed. 2d 215 (1997) (if "Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal
quotation marks omitted)).
IV
Warren's arguments against reading the word "discharge" in its common sense fail on
their own terms. They also miss the forest for the trees.
Congress passed the Clean Water Act to "restore and maintain the chemical, physical,
and biological integrity of the Nation's waters," 33 U.S.C. § 1251(a); see also PUD No. 1, 511
U.S., at 714, 114 S. Ct. 1900, 128 L. Ed. 2d 716, the "national goal" being to achieve "water
quality which provides for the protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water," 33 U.S.C. § 1251(a)(2). To do this, the Act does not
stop at controlling the "addition of pollutants," but deals with "pollution" generally, see §
1251(b), which Congress defined to mean "the man-made or man-induced alteration of the
chemical, physical, biological, and radiological integrity of water." § 1362(19).
The alteration of water quality as thus defined is a risk inherent in limiting river flow and
releasing water through turbines. Warren itself admits that its dams "can cause changes in the
movement, flow, and circulation of a river . . . caus[ing] a river to absorb less oxygen and to be
less passable by boaters and fish." And several amici alert us to the chemical modification
caused by the dams, with "immediate impact on aquatic organisms, which of course rely on
dissolved oxygen in water to breathe." Then there are the findings of the Maine Department of
Environmental Protection that led to this appeal:
"The record in this case demonstrates that Warren's dams have caused long stretches of the
natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations
of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run
fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity
for fishing in long stretches of river, and that the dams have prevented recreational access to and
use of the river."
Changes in the river like these fall within a State's legitimate legislative business, and the
Clean Water Act provides for a system that respects the States' concerns. See 33 U.S.C. §
1251(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate pollution"); § 1256(a)
13
(federal funds for state efforts to prevent pollution); see also § 1370 (States may impose
standards on the discharge of pollutants that are stricter than federal ones).
State certifications under § 401 are essential in the scheme to preserve state authority to
address the broad range of pollution, as Senator Muskie explained on the floor when what is now
§ 401 was first proposed:
"No polluter will be able to hide behind a Federal license or permit as an excuse for a violation
of water quality standard[s]. No polluter will be able to make major investments in facilities
under a Federal license or permit without providing assurance that the facility will comply with
water quality standards. No State water pollution control agency will be confronted with a fait
accompli by an industry that has built a plant without consideration of water quality
requirements." 116 Cong. Rec. 8984 (1970).
These are the very reasons that Congress provided the States with power to enforce "any
other appropriate requirement of State law," 33 U.S.C. § 1341(d), by imposing conditions on
federal licenses for activities that may result in a discharge, ibid.
Reading § 401 to give "discharge" its common and ordinary meaning preserves the state
authority apparently intended. The judgment of the Supreme Judicial Court of Maine is
therefore affirmed.
It is so ordered.
Justice Scalia joins all but Part III-C of this opinion.CANONS OF STATUTORY
INTERPRETATION
Plain Meaning and Textualism
“Our first step in interpreting a statute is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the case. Our
inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is
coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997)
(quoting United States v. Ron Par Enterprises, 489 U.S. 235, 240 (1989)).
“The plainness or ambiguity of statutory language is determined by reference to the
language itself, the specific context in which that language is used, and the broader
context of the statute as a whole.” Id.
“Our role is to interpret the language of the statute enacted by Congress. . . . ‘We have
stated time and again that courts must presume that a legislature says in a statute what it
means and means in a statute what it says there. When the words of a statute are
unambiguous, then, this first canon is also the last: “judicial inquiry is complete.”’”
Barnhart v. Sigmun Coal Co., 534 U.S. 438, 461-62 (2002) (quoting Connecticut
National Bank v. Germain, 503 U.S. 249, 253-54 (1992)).
14
Give Effect to the Entire Statute
“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole,
to be so construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’” TRW v. Andrews, 534 U.S. 19, 30 (2001) (quoting
Duncan v. Walker, 533 U.S. 167, 174 (2001)).
“It is the ‘“cardinal principle of statutory construction”’ . . . [that] it is our duty “to give
effect, if possible, to every clause and word of a statute” . . . rather than to emasculate an
entire section.’” Bennett v. Spear, 520 U.S. 154, 173 (1997) (quoting United States v.
Menasche, 348 U.S. 528, 538 (1955)).
Avoidance of Significant Constitutional Questions
“‘It is a cardinal principle’ of statutory interpretation . . . that when an Act of Congress
raises ‘a serious doubt’ as to its constitutionality, ‘this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided.’”
Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (quoting Crowell v. Benson, 285 U.S. 22,
62 (1932)).
“First, as a general matter, when a particular interpretation of a statute invokes the outer
limits of Congress' power, we expect a clear indication that Congress intended that result.
Second, if an otherwise acceptable construction of a statute would raise serious
constitutional problems, and where an alternative interpretation of the statute is ‘fairly
possible,’ we are obligated to construe the statute to avoid such problems.” Immigration
and Naturalization Service v. Cyr, 533 U.S. 289, 299-300 (2001) (quoting Crowell v.
Benson, 285 U.S. 22, 62 (1932)).
“[O]ne of the canon's chief justifications is that it allows courts to avoid the decision of
constitutional questions. It is a tool for choosing between competing plausible
interpretations of a statutory text, resting on the reasonable presumption that Congress
did not intend the alternative which raises serious constitutional doubts. The canon is
thus a means of giving effect to congressional intent, not of subverting it.” Clark v.
Benetiz, 543 U.S. 371, 381 (2005).
“[T]he canon of constitutional avoidance does not apply if a statute is not ‘genuinely
susceptible to two constructions.’” Gonzalez v. Carhart, 550 U.S. 124, 154 (2007)
(quoting Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998)).
Repeals By Implication Are Disfavored
“‘It is, of course, a cardinal principle of statutory construction that repeals by implication
are not favored.’” Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (quoting
United States v. United Continental Tuna Corp., 425 U.S. 164, 168 n.9 (1976)).
15
“The courts are not at liberty to pick and choose among congressional enactments, and
when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each as effective. ‘When
there are two acts upon the same subject, the rule is to give effect to both if possible . . . .
The intention of the legislature to repeal “must be clear and manifest.”’” Morton v.
Mancari, 417 U.S. 535, 550-51 (1974) (quoting United States v. Borden Co., 308 U.S.
188, 198 (1939)).
“There are, however, ‘two well-settled categories of repeals by implication—(1) where
provisions in the two acts are in irreconcilable conflict, the later act to the extent of the
conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the
whole subject of the earlier one and is clearly intended as a substitute, it will operate
similarly as a repeal of the earlier act. But, in either case, the intention of the legislature
to repeal must be clear and manifest.’” Radzanower v. Touche Ross & Co., 426 U.S. 148,
154 (1976) (quoting Posadas v. National City Bank, 296 U.S. 497, 503 (1936)).
The Specific Takes Precedence Over the General
“It is a basic principle of statutory construction that a statute dealing with a narrow,
precise, and specific subject is not submerged by a later enacted statute covering a more
generalized spectrum. ‘Where there is no clear intention otherwise, a specific statute will
not be controlled or nullified by a general one, regardless of the priority of enactment.’
‘The reason and philosophy of the rule is, that when the mind of the legislator has been
turned to the details of a subject, and he has acted upon it, a subsequent statute in general
terms, or treating the subject in a general manner, and not expressly contradicting the
original act, shall not be considered as intended to affect the more particular or positive
previous provisions, unless it is absolutely necessary to give the latter act such a
construction, in order that its words shall have any meaning at all.’” Radzanower v.
Touche Ross & Co., 426 U.S. 148, 154 (1976) (quoting Morton v. Mancari, 417 U.S.
535, 550-51 (1974); T. SEDGWICK, THE INTERPRETATION AND CONSTRUCTION OF
STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)).
In Pari Materia
“[T]he normal rule of statutory interpretation [is] that identical words used in different
parts of the same statute are generally presumed to have the same meaning.” IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005).
“The rule of in pari material—like any canon of statutory construction—is a reflection of
practical experience in the interpretation of statutes: a legislative body generally uses a
particular word with a consistent meaning in a given context. Thus, for example, a ‘later
act can . . . be regarded as a legislative interpretation of [an] earlier act . . . in the sense
that it aids in ascertaining the meaning of the words as used in their contemporary
setting," and "is therefore entitled to great weight in resolving any ambiguities and
doubts.’ The rule is but a logical extension of the principle that individual sections of a
single statute should be construed together, for it necessarily assumes that whenever
16
Congress passes a new statute, it acts aware of all previous statutes on the same subject.
Given this underlying assumption, the rule's application certainly makes the most sense
when the statutes were enacted by the same legislative body at the same time.”
Erienbaugh v. United States, 409 U.S. 239, 243-44 (1972) (quoting United States v.
Stewart, 311 U.S. 60, 64-65 (1940)).
“Although we presume that the same term has the same meaning when it occurs here and
there in a single statute, . . . [w]e also understand that ‘most words have different shades
of meaning and consequently may be variously construed, not only when they occur in
different statutes, but when used more than once in the same statute or even in the same
section.’ Thus, the ‘natural presumption that identical words used in different parts of the
same act are intended to have the same meaning . . . is not rigid and readily yields
whenever there is such variation in the connection in which the words are used as
reasonably to warrant the conclusion that they were employed in different parts of the act
with different intent.’ Ibid. A given term in the same statute may take on distinct
characters from association with distinct statutory objects calling for different
implementation strategies.” Environmental Defense v. Duke Energy Corp., 549 U.S. 561,
574 (2007) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433
(1932)).
“If ‘Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.’” S.D. Warren Co. v. Maine Board
of Environmental Protection, 547 U.S. 370, 384 (2006) (quoting Bates v. United States,
522 U.S. 23, 29-30 (1997)).
Ordinary Meaning, Context, and Purpose
“When a word is not defined by statute, we normally construe it in accord with its ordinary or
natural meaning.” Smith v. United States, 508 U.S. 223, 228 (1993).
“Words in statutes can enlarge or contract their scope as other changes, in law or in the world,
require their application to new instances or make old applications anachronistic.” West v.
Gibson, 527 U.S. 212, 218 (1999).
“It is a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the
statute, because not within its spirit, nor within the intention of its makers.’” United Steelworkers
of America v. Weber, 443 U.S. 193, 201 (1979) (quoting Holy Trinity Church v. United States,
143 U.S. 457, 459 (1892)).
Language of Limitation and Expansiveness
“As a rule, ‘[a] definition which declares what a term “means” . . . excludes any meaning
that is not stated.’” Colatti v. Franklin, 439 U.S. 379, 392 n. 10 (1979) (quoting 2A C.
SANDS, STATUTES AND STATUTORY CONSTRUCTION § 47.07 (4th ed. Supp. 1978)).
17
“The word ‘any’ has an expansive meaning, that is, one or some indiscriminately of
whatever kind.” Department of Housing and Urban Development v. Rucker, 535 U.S.
125, 131 (2002).
Ejusdem Generis
“[E]jusdem generis [is] the statutory canon that ‘where general words follow specific
words in a statutory enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the preceding specific words.’”
Circuit City Stores v. Adams, 532 U.S. 105, 114-15 (2001) (quoting 2A N. SINGER,
SUTHERLAND ON STATUTES AND STATUTORY CONSTRUCTION § 47.17 (1991)).
“Under the principle of ejusdem generis, when a general term follows a specific one, the
general term should be understood as a reference to subjects akin to the one with specific
enumeration. The canon does not control, however, when the whole context dictates a
different conclusion.” Norfolk & Western Railway v. Brotherhood of Railway Carmen,
499 U.S. 117, 129 (1991).
Noscitur a Sociis
“The maxim noscitur a sociis, that a word is known by the company it keeps, while not
an inescapable rule, is often wisely applied where a word is capable of many meanings in
order to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.
D. Searle & Co., 367 U.S. 303, 307 (1961).
“The canon, to the contrary, counsels that a word ‘gathers meaning from the words
around it.’” Babbitt v. Sweet Home Communities for a Greater Oregon, 515 U.S. 687,
701 (1995) (quoting Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961)).
Expressio Unius Est Exclusio Alterius
“[E]xpressio unius est exclusio alterius”—i.e., the expression of one is the exclusion of
others. United States v. Wells Fargo Bank, 485 U.S. 351, 357 (1988).
“The canon depends on identifying a series of two or more terms or things that should be
understood to go hand in hand, which are abridged in circumstances supporting a sensible
inference that the term left out must have been meant to be excluded. Chevron USA v.
Echazbel, 536 U.S. 73, 81 (2002) (quoting E. CRAWFORD, CONSTRUCTION OF STATUTES
337 (1940) (expressio unius “‘properly applies only when in the natural association of
ideas in the mind of the reader that which is expressed is so set over by way of strong
contrast to that which is omitted that the contrast enforces the affirmative inference.’”).
“[T]he canon that expressing one item of a commonly associated group or series excludes
another left unmentioned is only a guide, whose fallibility can be shown by contrary
indications that adopting a particular rule or statute was probably not meant to signal any
exclusion of its common relatives.” United States v. Vonn, 535 U.S. 55, 65 (2002).
18
Waivers of Sovereign Immunity
“[A] waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text.
See, e.g., Lane v. Peña, 518 U. S. 187, 192 (1996); United States v. Nordic Village, Inc.,
503 U. S. 30, 33 (1992); Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95
(1990). Legislative history cannot supply a waiver that is not clearly evident from the
language of the statute. Lane, supra, at 192. Any ambiguities in the statutory language are
to be construed in favor of immunity, United States v. Williams, 514 U. S. 527, 531
(1995), so that the Government’s consent to be sued is never enlarged beyond what a fair
reading of the text requires, Ruckelshaus v. Sierra Club, 463 U. S. 680, 685–686 (1983)
(citing Eastern Transp. Co. v. United States, 272 U. S. 675, 686 (1927)). Ambiguity
exists if there is a plausible interpretation of the statute that would not authorize money
damages against the Government. Nordic Village, supra, at 34, 37.” Federal Aviation
Administration v. Cooper, 566 U.S. —, — (2012).
“Although this canon of interpretation requires an unmistakable statutory expression of
congressional intent to waive the Government’s immunity, Congress need not state its
intent in any particular way. We have never required that Congress use magic words. To
the contrary, we have observed that the sovereign immunity canon ‘is a tool for
interpreting the law’ and that it does not ‘displac[e] the other traditional tools of statutory
construction.’ Richlin Security Service Co. v. Chertoff, 553 U. S. 571, 589 (2008). What
we thus require is that the scope of Congress’ waiver be clearly discernable from the
statutory text in light of traditional interpretive tools. If it is not, then we take the
interpretation most favorable to the Government.” Id.
***
For a more detailed analysis of these and other canons of statutory construction, see
Congressional Research Service, Statutory Interpretation: General Principles and Recent Trends
(2008).
WISCONSIN PUBLIC INTERVENOR v. MORTIER
Supreme Court of the United States
501 U.S. 597 (1991)
JUSTICE WHITE delivered the opinion of the Court.
This case requires us to consider whether the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA or Act), 61 Stat. 163, as amended, 7 U. S. C. § 136 et seq., preempts the
regulation of pesticides by local governments. We hold that it does not.
I
19
A
FIFRA was enacted in 1947 to replace the Federal Government's first effort at pesticide
regulation, the Insecticide Act of 1910, 36 Stat. 331. 61 Stat. 163. Like its predecessor, FIFRA as
originally adopted "was primarily a licensing and labeling statute." Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 991, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984). In 1972, growing
environmental and safety concerns led Congress to undertake a comprehensive revision of
FIFRA through the Federal Environmental Pesticide Control Act. 86 Stat. 973. The 1972
amendments significantly strengthened FIFRA's registration and labeling standards. 7 U. S. C. §
136a. To help make certain that pesticides would be applied in accordance with these standards,
the revisions further insured that FIFRA "regulated the use, as well as the sale and labeling, of
pesticides; regulated pesticides produced and sold in both intrastate and interstate commerce;
[and] provided for review, cancellation, and suspension of registration." Ruckelshaus, supra, at
991-992. An additional change was the grant of increased enforcement authority to the
Environmental Protection Agency (EPA), which had been charged with federal oversight of
pesticides since 1970. See Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15623 (1970), 5 U.
S. C. App., p. 1343. In this fashion, the 1972 amendments "transformed FIFRA from a labeling
law into a comprehensive regulatory statute." 467 U.S. at 991.
As amended, FIFRA specifies several roles for state and local authorities. The statute, for
example, authorizes the EPA Administrator to enter into cooperative agreements with the States
to enforce FIFRA provisions. 7 U. S. C. §§ 136u, 136w-1. As part of the enforcement scheme,
FIFRA requires manufacturers to produce records for inspection "upon request of any officer or
employee of the Environmental Protection Agency or of any State or political subdivision, duly
designated by the Administrator." § 136f(b). FIFRA further directs the EPA Administrator to
cooperate with "any appropriate agency of any State or any political subdivision thereof." §
136t(b). Of particular relevance to this case, § 24(a) specifies that States may regulate the sale or
use of pesticides so long as the state regulation does not permit a sale or use prohibited by the
Act. § 136v(a).
B
Petitioner, the town of Casey, is a small rural community located in Washburn County,
Wisconsin, several miles northwest of Spooner, on the road to Superior. In 1985, the town
adopted Ordinance 85-1, which regulates the use of pesticides. The ordinance expressly borrows
statutory definitions from both Wisconsin laws and FIFRA, and was enacted under Wis. Stat. §§
61.34(1), (5) (1989-1990), which accord village boards general police, health, and taxing powers.
The ordinance requires a permit for the application of any pesticide to public lands, to
private lands subject to public use, or for the aerial application of any pesticide to private lands. §
1.2 A permit applicant must file a form including information about the proposed pesticide use
not less than 60 days before the desired use. § 1.3(2). The town board may "deny the permit,
grant the permit, or grant the permit with . . . any reasonable conditions on a permitted
application related to the protection of the health, safety and welfare of the residents of the Town
of Casey." § 1.3(3). After an initial decision, the applicant or any town resident may obtain a
hearing to provide additional information regarding the proposed application. §§ 1.3(4), (5).
20
When a permit is granted, or granted with conditions, the ordinance further requires the permittee
to post placards giving notice of the pesticide use and of any label information prescribing a safe
reentry time. § 1.3(7). Persons found guilty of violating the ordinance are subject to fines of up
to $ 5,000 for each violation. § 1.3(7)(c).
Respondent Ralph Mortier applied for a permit for aerial spraying of a portion of his
land. The town granted him a permit, but precluded any aerial spraying and restricted the lands
on which ground spraying would be allowed. Mortier, in conjunction with respondent
Wisconsin Forestry/Rights-of-Way/Turf Coalition,4 brought a declaratory judgment action in the
Circuit Court for Washburn County against the town of Casey and named board members,
claiming that the town of Casey's ordinance is pre-empted by state and federal law. The
Wisconsin Public Intervenor, an assistant attorney general charged under state law with the
protection of environmental public rights, Wis. Stat. §§ 165.07, 165.075 (1989-1990), was
admitted without objection as a party defendant. On cross-motions for summary judgment, the
Circuit Court ruled in favor of Mortier, holding that the town's ordinance was pre-empted both
by FIFRA and by state statute, §§ 94.67-94.71.
The Supreme Court of Wisconsin affirmed in a 4-to-3 decision. Mortier v. Casey, 154
Wis. 2d 18, 452 N.W.2d 555 (1990). Declining to address the issue of state-law pre-emption, the
court concluded that FIFRA pre-empted the town of Casey's ordinance because the statute's text
and legislative history demonstrated a clearly manifest congressional intent to prohibit "any
regulation of pesticides by local units of government." Id. at 20, n.2, and 30, 452 N.W.2d at 555,
n.2, and 560. The court's decision accorded with the judgments of two Federal Courts of
Appeals. Professional Lawn Care Association v. Milford, 909 F.2d 929 (CA6 1990); Maryland
Pest Control Association v. Montgomery County, 822 F.2d 55 (CA4 1987), summarily aff'g 646
F. Supp. 109 (Md. 1986). Two separate dissents concluded that neither FIFRA's language nor its
legislative history expressed an intent to pre-empt local regulation. Casey, supra, at 33, 452
N.W.2d at 561 (Abrahamson, J., dissenting); 154 Wis. 2d at 45, 452 N.W.2d at 566 (Steinmetz,
J., dissenting). The dissenters' conclusion in part relied on decisions reached by two State
Supreme Courts. Central Maine Power Co. v. Lebanon, 571 A.2d 1189 (Me. 1990); People ex
rel. Deukmejian v. County of Mendocino, 36 Cal. 3d 476, 683 P.2d 1150, 204 Cal. Rptr. 897
(1984). Given the importance of the issue and the conflict of authority, we granted certiorari.
498 U.S. 1045 (1991). We now reverse.
II
Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, state laws that "interfere with, or
are contrary to the laws of congress, made in pursuance of the constitution" are invalid. Gibbons
v. Ogden, 22 U.S. 1, 9 Wheat. 1, 211, 6 L. Ed. 23 (1824) (Marshall, C. J.). The ways in which
federal law may pre-empt state law are well established and in the first instance turn on
congressional intent. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 112 L. Ed. 2d 474, 111 S.
Ct. 478 (1990). Congress' intent to supplant state authority in a particular field may be express in
the terms of the statute. Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S.
4
The coalition is an unincorporated, nonprofit association of individual businesses and
other associations whose members use pesticides.
21
Ct. 1305 (1977). Absent explicit pre-emptive language, Congress' intent to supersede state law
in a given area may nonetheless be implicit if a scheme of federal regulation is "so pervasive as
to make reasonable the inference that Congress left no room for the States to supplement it," if
"the Act of Congress . . . touch[es] a field in which the federal interest is so dominant that the
federal system will be assumed to preclude enforcement of state laws on the same subject," or if
the goals "sought to be obtained" and the "obligations imposed" reveal a purpose to preclude
state authority. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct.
1146 (1947). See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and
Development Comm'n, 461 U.S. 190, 203-204, 75 L. Ed. 2d 752, 103 S. Ct. 1713 (1983). When
considering preemption, "we start with the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless that was the clear and manifest
purpose of Congress." Rice, supra, at 230.
Even when Congress has not chosen to occupy a particular field, pre-emption may occur
to the extent that state and federal law actually conflict. Such a conflict arises when "compliance
with both federal and state regulations is a physical impossibility," Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963), or when a
state law "stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 85 L. Ed. 581, 61 S. Ct. 399 (1941).
It is, finally, axiomatic that "for the purposes of the Supremacy Clause, the
constitutionality of local ordinances is analyzed in the same way as that of statewide laws."
Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713, 85 L. Ed. 2d
714, 105 S. Ct. 2371 (1985). See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S.
624, 36 L. Ed. 2d 547, 93 S. Ct. 1854 (1973).
III
Applying these principles, we conclude that FIFRA does not pre-empt the town's
ordinance either explicitly or implicitly or by virtue of an actual conflict.
As the Wisconsin Supreme Court recognized, FIFRA nowhere expressly supersedes local
regulation of pesticide use. The court, however, purported to find statutory language "which is
indicative" of pre-emptive intent in the statute's provision delineating the "Authority of States." 7
U. S. C. § 136v. The key portions of that provision state:
"(a) . . . A State may regulate the sale or use of any federally registered pesticide or device in the
State, but only if and to the extent the regulation does not permit any sale or use prohibited by
this subchapter.
"(b) . . . Such State shall not impose or continue in effect any requirements for labeling or
packaging in addition to or different from those required under this subchapter."
Also significant, in the court's eyes, was FIFRA's failure to specify political subdivisions in
defining "State" as "a State, the District of Columbia, the Commonwealth of Puerto Rico, the
22
Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and American Samoa." §
136(aa).
It was not clear to the State Supreme Court, however, "that the statutory language [§§
136v and 136(aa)] alone evinced congress' manifest intent to deprive political subdivisions of
authority to regulate pesticides." Casey, 154 Wis. 2d at 25, 452 N.W.2d at 557-558. It was
nevertheless "possible" to infer from the statutory language alone that pesticide regulation by
local entities was preempted; and when coupled with its legislative history, that language
"unmistakably demonstrates the intent of Congress to pre-empt local ordinances such as that
adopted by the Town of Casey." Id. at 28, 452 N.W.2d at 559. The court's holding thus rested
on both §§ 136v and 136(aa) and their legislative history; neither the language nor the legislative
history would have sufficed alone. There was no suggestion that absent the two critical sections,
FIFRA was a sufficiently comprehensive statute to justify an inference that Congress had
occupied the field to the exclusion of the States. Nor have the respondents argued in this Court to
that effect. On the other hand, it is sufficiently clear that under the opinion announced by the
court below, the State would have been precluded from permitting local authorities to regulate
pesticides.
We agree that neither the language of the statute nor its legislative history, standing
alone, would suffice to preempt local regulation. But it is also our view that, even when
considered together, the language and the legislative materials relied on below are insufficient to
demonstrate the necessary congressional intent to preempt. As for the statutory language, it is
wholly inadequate to convey an express pre-emptive intent on its own. Section 136v plainly
authorizes the "States" to regulate pesticides and just as plainly is silent with reference to local
governments. Mere silence, in this context, cannot suffice to establish a "clear and manifest
purpose" to pre-empt local authority. Rice, supra, at 230. Even if FIFRA's express grant of
regulatory authority to the States could not be read as applying to municipalities, it would not
follow that municipalities were left with no regulatory authority. Rather, it would mean that
localities could not claim the regulatory authority explicitly conferred upon the States that might
otherwise have been pre-empted through actual conflicts with federal law. At a minimum,
localities would still be free to regulate subject to the usual principles of preemption.
Properly read, the statutory language tilts in favor of local regulation. The principle is
well settled that local "'governmental units are "created as convenient agencies for exercising
such of the governmental powers of the State as may be entrusted to them" . . . in [its] absolute
discretion.'" Sailors v. Board of Ed. of Kent Cty., 387 U.S. 105, 108, 18 L. Ed. 2d 650, 87 S. Ct.
1549 (1967), quoting Reynolds v. Sims, 377 U.S. 533, 575, 12 L. Ed. 2d 506, 84 S. Ct. 1362
(1964), quoting Hunter v. Pittsburgh, 207 U.S. 161, 178, 52 L. Ed. 151, 28 S. Ct. 40 (1907). The
exclusion of political subdivisions cannot be inferred from the express authorization to the
"State[s]" because political subdivisions are components of the very entity the statute empowers.
Indeed, the more plausible reading of FIFRA's authorization to the States leaves the allocation of
regulatory authority to the "absolute discretion" of the States themselves, including the option of
leaving local regulation of pesticides in the hands of local authorities.
Certainly no other textual basis for pre-emption exists. Mortier, building upon the
decision below, contends that other provisions show that Congress made a clear distinction
23
between non-regulatory authority, which it delegated to the States or their political subdivisions,
and regulatory authority, which it expressly delegated to the "State[s]" alone. The provisions on
which he relies, however, undercut his contention. Section 136t(b), for example, mandates that
the EPA Administrator cooperate with "any appropriate agency of any State or any political
subdivision thereof, in carrying out the provisions of this subchapter." As an initial matter, the
section does not limit "the provisions of the subchapter" which localities are authorized to carry
out to "non-regulatory" provisions. Moreover, to read this provision as pre-empting localities
would also require the anomalous result of pre-empting the actions of any agency to the extent it
exercised state-delegated powers that included pesticide regulation. Likewise, § 136f(b) requires
manufacturers to produce records for the inspection upon the request of any employee of the
EPA "or of any State or political subdivision, duly designated by the Administrator." Section
136u(a)(1), however, authorizes the Administrator to "delegate to any State . . . the authority to
cooperate in the enforcement of this [Act] through the use of its personnel." If the use of "State"
in FIFRA impliedly excludes subdivisions, it is unclear why the one provision would allow the
designation of local officials for enforcement purposes while the other would prohibit local
enforcement authority altogether.
Mortier, like the court below and other courts that have found preemption, attempts to
compensate for the statute's textual inadequacies by stressing the legislative history. Casey, 154
Wis. 2d at 25-28, 452 N.W.2d at 558-559; Professional Lawn Care Association, 909 F.2d at 933934. The evidence from this source, which centers on the meaning of what would become §
136v, is at best ambiguous. The House Agriculture Committee Report accompanying the
proposed FIFRA amendments stated that it had "rejected a proposal which would have permitted
political subdivisions to further regulate pesticides on the grounds that the 50 States and the
Federal Government should provide an adequate number of regulatory jurisdictions." H. R. Rep.
No. 92-511, p. 16 (1971). While this statement indicates an unwillingness by Congress to grant
political subdivisions regulatory authority, it does not demonstrate an intent to prevent the States
from delegating such authority to its subdivisions, and still less does it show a desire to prohibit
local regulation altogether. At least one other statement, however, concededly goes further. The
Senate Committee on Agriculture and Forestry Report states outright that it "considered the
decision of the House Committee to deprive political subdivisions of States and other local
authorities of any authority or jurisdiction over pesticides and concurs with the decision of the
House of Representatives." S. Rep. No. 92-838, p. 16 (1972).
But other Members of Congress clearly disagreed. The Senate Commerce Committee,
which also had jurisdiction over the bill, observed that "while the [Senate] Agriculture
Committee bill does not specifically prohibit local governments from regulating pesticides, the
report of that committee states explicitly that local governments cannot regulate pesticides in any
manner. Many local governments now regulate pesticides to meet their own specific needs
which they are often better able to perceive than are State and Federal regulators." S. Rep. No.
92-970, p. 27 (1972). To counter the language in the Agriculture and Forestry Committee
Report, the Commerce Committee proposed an amendment expressly authorizing local
regulation among numerous other, unrelated proposals. This amendment was rejected after
negotiations between the two Committees. See 118 Cong. Rec. 32251 (1972); H. R. Conf. Rep.
No. 92-1540, p. 33 (1972).
24
As a result, matters were left with the two principal Committees responsible for the bill in
disagreement over whether it preempted pesticide regulation by political subdivisions. It is
important to note, moreover, that even this disagreement was confined to the preemptive effect
of FIFRA's authorization of regulatory power to the States in § 136v. None of the Committees
mentioned asserted that FIFRA pre-empted the field of pesticide regulation. Like FIFRA's text,
the legislative history thus falls far short of establishing that pre-emption of local pesticide
regulation was the "clear and manifest purpose of Congress." Rice, 331 U.S. at 230. We thus
agree with the submission in the amicus brief of the United States expressing the views of the
EPA, the agency charged with enforcing FIFRA.5
***
IV
We hold that FIFRA does not preempt the town of Casey's ordinance regulating the use
of pesticides. The judgment of the Wisconsin Supreme Court is reversed, and the case is
remanded for proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in the judgment.
I agree with the Court that FIFRA does not preempt local regulation, because I agree that
the terms of the statute do not alone manifest a pre-emption of the entire field of pesticide
regulation. If there were field pre-emption, 7 U. S. C. § 136v would be understood not as
restricting certain types of state regulation (for which purpose it makes little sense to restrict
States but not their subdivisions) but as authorizing certain types of state regulation (for which
purpose it makes eminent sense to authorize States but not their subdivisions). But the field-preemption question is certainly a close one. Congress' selective use of "State" and "State and
political subdivisions thereof" would suggest the authorizing rather than restricting meaning of §
136v, were it not for the inconsistent usage pointed to in Part I of the Court's opinion.
As the Court today recognizes, the Wisconsin justices agreed with me on this point, and
would have come out the way that I and the Court do but for the Committee Reports contained in
FIFRA's legislative history. I think they were entirely right about the tenor of those Reports.
5
JUSTICE SCALIA's foray into legislative history runs into several problems. * * * As
for the propriety of using legislative history at all, common sense suggests that inquiry benefits
from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it,
"where the mind labours to discover the design of the legislature, it seizes every thing from
which aid can be derived." United States v. Fisher, 6 U.S. 358, 2 Cranch 358, 386, 2 L. Ed. 304
(1805). Legislative history materials are not generally so misleading that jurists should never
employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that
the Court's practice of utilizing legislative history reaches well into its past. See, e.g., Wallace v.
Parker, 6 Pet. 680, 687-690 (1832). We suspect that the practice will likewise reach well into the
future.
25
Their only mistake was failing to recognize how unreliable Committee Reports are—not only as
a genuine indicator of congressional intent but as a safe predictor of judicial construction. We
use them when it is convenient, and ignore them when it is not.
Consider how the case would have been resolved if the Committee Reports were taken
seriously: The bill to amend FIFRA (H.R. 10729) was reported out of the House Committee on
Agriculture on September 25, 1971. According to the accompanying Committee Report:
"The Committee rejected a proposal which would have permitted political subdivisions to further
regulate pesticides on the grounds that the 50 States and the Federal Government should provide
an adequate number of regulatory jurisdictions." H.R. Rep. No. 92-511, p. 16 (1971).
Had the grounds for the rejection not been specified, it would be possible to entertain the Court's
speculation that the Committee might have been opposing only direct conferral upon localities of
authority to regulate, in contrast to state delegation of authority to regulate. But once it is
specified that an excessive number of regulatory jurisdictions is the problem—that "50 States
and the Federal Government" are enough—then it becomes clear that the Committee wanted
localities out of the picture, and thought that its bill placed them there.
The House Agriculture Committee's bill was passed by the full House on November 9,
1971, and upon transmittal to the Senate was referred to the Senate Committee on Agriculture
and Forestry, which reported it out on June 7, 1972. The accompanying Committee Report both
clearly confirms the foregoing interpretation of the House Committee Report, and clearly
endorses the disposition that interpretation produces.
"[We have] considered the decision of the House Committee to deprive political subdivisions of
States and other local authorities of any authority or jurisdiction over pesticides and concu[r]
with the decision of the House of Representatives. Clearly, the fifty States and the Federal
Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if
any, local authorities whether towns, counties, villages, or municipalities have the financial
wherewithal to provide necessary expert regulation comparable with that provided by the State
and Federal Governments. On this basis and on the basis that permitting such regulation would
be an extreme burden on interstate commerce, it is the intent that section [136v], by not
providing any authority to political subdivisions and other local authorities of or in the States,
should be understood as depriving such local authorities and political subdivisions of any and all
jurisdiction and authority over pesticides and the regulation of pesticides." S. Rep. No. 92-838,
pp. 16-17 (1972), U.S. Code Cong. & Admin. News 1972, p. 4008 (emphasis added).
Clearer committee language "directing" the courts how to interpret a statute of Congress could
not be found, and if such a direction had any binding effect, the question of interpretation in this
case would be no question at all.
But there is still more. After the Senate Agriculture Committee reported the bill to the
floor, it was re-referred to the Committee on Commerce, which reported it out on July 19, 1972.
The Report of that Committee, plus the accompanying proposals for amendment of H.R. 10729,
26
reconfirmed the interpretation of the Senate and House Agriculture Committees. The Report
said:
"While the Agriculture Committee bill does not specifically prohibit local governments from
regulating pesticides, the report of that committee states explicitly that local governments cannot
regulate pesticides in any manner. Many local governments now regulate pesticides to meet
their own specific needs which they are often better able to perceive than are State and Federal
regulators." S. Rep. No. 92-970, p. 27 (1972), U.S. Code Cong. & Admin. News 1972, p. 4111.
The Court claims that this passage, plus the amendment that it explains, show that "the
two principal Committees responsible for the bill [were] in disagreement over whether it preempted pesticide regulation by political subdivisions." I confess that I am less practiced than
others in the science of construing legislative history, but it seems to me that quite the opposite is
the case. The Senate Commerce Committee Report does not offer a different interpretation of
the pre-emptive effect of H.R. 10729. To the contrary, it acknowledges that the Report of the
originating Committee "states explicitly that local governments cannot regulate pesticides in any
manner," and then proceeds to a statement ("Many local governments now regulate pesticides,
etc.") which questions not the existence but the desirability of that restriction on local regulatory
power. And since it agreed with the interpretation but did not agree with the policy, the Senate
Commerce Committee proposed an amendment to H.R. 10729, whose purpose, according to its
Report, was to "giv[e] local governments the authority to regulate the sale or use of a pesticide
beyond the requirements imposed by State and Federal authorities." S. Rep. No. 92-970, supra,
at 27, U.S. Code Cong. & Admin. News 1972, p. 4111. In a supplemental Report, the Senate
Agriculture Committee opposed the Commerce Committee's amendment, which it said would
"giv[e] local governments the authority to regulate the sale or use of a pesticide," thereby
"vitiat[ing]" the earlier Agriculture Committee Report. S. Rep. No. 92-838, pt. 2, supra, at 4647, U.S. Code Cong. & Admin. News 1972, p. 4066. This legislative history clearly
demonstrates, I think, not (as the Court would have it) that the two principal Senate Committees
disagreed about whether H.R. 10729 pre-empted local regulation, but that they were in complete
accord that it did, and in disagreement over whether it ought to.
Of course that does not necessarily say anything about what Congress as a whole thought.
Assuming that all the members of the three Committees in question (as opposed to just the
relevant Subcommittees) actually adverted to the interpretive point at issue here—which is
probably an unrealistic assumption—and assuming further that they were in unanimous
agreement on the point, they would still represent less than two-fifths of the Senate, and less than
one-tenth of the House. It is most unlikely that many Members of either Chamber read the
pertinent portions of the Committee Reports before voting on the bill—assuming (we cannot be
sure) that the Reports were available before the vote. Those pertinent portions, though they
dominate our discussion today, constituted less than a quarter-page of the 82-page House
Agriculture Committee Report, and less than a half-page each of the 74-page Senate Agriculture
Committee Report, the 46-page Senate Commerce Committee Report, and the 73-page Senate
Agriculture Committee Supplemental Report. Those Reports in turn were a minuscule portion of
the total number of reports that the Members of Congress were receiving (and presumably even
writing) during the period in question. In the Senate, at least, there was a vote on an amendment
(the Commerce Committee proposal) that would have changed the result of the supposed
27
interpretation. But the full Senate could have rejected that either because a majority of its
Members disagreed with the Commerce Committee's proposed policy; or because they disagreed
with the Commerce Committee's and the Agriculture Committee's interpretation (and thus
thought the amendment superfluous); or because they were blissfully ignorant of the entire
dispute and simply thought that the Commerce Committee, by asking for recommittal and
proposing 15 amendments, was being a troublemaker; or because three different minorities
(enough to make a majority) had each of these respective reasons. We have no way of knowing;
indeed, we have no way of knowing that they had any rational motive at all.
All we know for sure is that the full Senate adopted the text that we have before us here,
as did the full House, pursuant to the procedures prescribed by the Constitution; and that that
text, having been transmitted to the President and approved by him, again pursuant to the
procedures prescribed by the Constitution, became law. On the important question before us
today, whether that law denies local communities throughout the Nation significant powers of
self-protection, we should try to give the text its fair meaning, whatever various committees
might have had to say—thereby affirming the proposition that we are a Government of laws, not
of committee reports. That is, at least, the way I prefer to proceed.
If I believed, however, that the meaning of a statute is to be determined by committee
reports, I would have to conclude that a meaning opposite to our judgment has been commanded
three times over—not only by one committee in each House, but by two Committees in one of
them. Today’s decision reveals that, in their judicial application, Committee reports are a
forensic rather than an interpretive device, to be invoked when they support the decision and
ignored when they do not. To my mind that is infinitely better than honestly giving them
dispositive effect. But it would be better still to stop confusing the Wisconsin Supreme Court,
and not to use committee reports at all.
* * *
The Court responds to this concurrence in a footnote, asserting that the legislative history
is really ambiguous. I leave it to the reader to judge. I must reply, however, to the Court's
assertion that the "practice of utilizing legislative history reaches well into [our] past," for which
proposition it cites an opinion written by none other than John Marshall himself, Wallace v.
Parker, 6 Pet. 680 (1832). What the Court neglects to explain is that what it means by the
"practice of utilizing legislative history" is not the practice of utilizing legislative history for the
purpose of giving authoritative content to the meaning of a statutory text—which is the only
practice I object to. Marshall used factual statements in the report of an Ohio legislative
committee "as part of the record" in the case, id. at 689, 690, assuming that that was permissible
"under the laws of Ohio," ibid. I do not object to such use. But that is quite different from the
recent practice of relying upon legislative material to provide an authoritative interpretation of a
statutory text. That would have shocked John Marshall. As late as 1897, we stated quite clearly
that there is "a general acquiescence in the doctrine that debates in Congress are not appropriate
sources of information from which to discover the meaning of the language of a statute passed by
that body." United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 318. And even as late
as 1953, the practice of using legislative history in that fashion was novel enough that Justice
Jackson could dismiss it as a "psychoanalysis of Congress," and a "weird endeavor." United
28
States v. Public Utilities Comm'n of Cal., 345 U.S. 295, 319 (concurring opinion). It is, in short,
almost entirely a phenomenon of this century—and in its extensive use a very recent
phenomenon. See, e.g., Carro & Brann, Use of Legislative Histories by the United States
Supreme Court: A Statistical Analysis, 9 J. Legis. 282 (1982); Wald, Some Observations on the
Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 196-197
(1983).
I am depressed if the Court is predicting that the use of legislative history for the purpose
I have criticized "will . . . reach well into the future." But if it is, and its prediction of the future
is as accurate as its perception that it is continuing a "practice . . . reach[ing] well into [our] past,"
I may have nothing to fear.
29