Legal Commentary

I think so. If I am right, then Entergy Corp, handed down today, is a significant defeat for textualism at the hands of its most zealous proponent.

The issue in Entergy Corp was whether the EPA could permit power plants to abstain from using the most environmentally safe "cooling water intake structures" on the grounds that the costs of these structures greatly exceeded their environmental benefits. The relevant statutory language of the Clean Water Act provides that the power plants must "use the best technology available for minimizing adverse environmental impact.? 33 U. S. C. §1326(b). Other provisions of the Act explicitly provide that the EPA can compare costs and benefits when defining the "best" technology that industry must adopt. The absence in section 1326(b) of any reference to cost-based reasons to abstain from imposing the best available technology, therefore, would seem to be a good textual reason to bar the EPA from reducing industry's obligations when the costs of technology exceed the technology's economic benefits. Expressio unius est exclusio alterius, right?

Nope: Justice Scalia abandons this textual argument in favor of Chevron deference. He reasons that the expressio unius argument, taken to its logical extreme, would require the EPA to impose billions of dollars in safeguards to spare the life of a single crab from being sucked into an intake pipe -- a drastic consequence that even Riverkeeper, Inc. would not endorse. "[I]f respondents? and the dissent?s conclusion regarding the import of §1326(b)?s silence is correct," Justice Scalia reasoned, then "it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the ?cost-effectiveness? and ?feasibility? analysis that the Second Circuit approved, that the dissent would approve, and that respondents acknowledge."

It is true that textualism might have such drastic consequences -- but so what? Pereat Mundus, Fiat Text: If the text is really unambiguous, then a fall-on-your sword textualist would not get past "Step 1" Chevron analysis. Justice Scalia is famous for arguing in his 1989 Duke Law Journal lectures that, as a textualist, he would be more reluctant to find statutory ambiguity sufficient to get past Chevron Step 1 than mushy purposivists. In his dissent last term in Begay v. United States, 128 S. Ct. 1581 (2008), Justice Scalia even hinted that purposivists were wimps who took ?ever-ready refuge from the hardships of statutory text.? An uncharitable reader might suspect that the old crusader for textualism has gotten too soft to face up to those hardships himself.

Of course, textualists observe the Absurdity canon (although John Manning argues that they oughtn't). But why is it absurd to demand that the EPA spare a few more percentage points worth of river organisms by imposing $3.5 billion in costs on power plants? If the snail darter can defeat the Tellico Dam in the name of text, then why cannot a few extra millions of crustaceans and fish that would otherwise be sucked into utility intake pipes defeat those utilities' river-sucking cooling systems? I did not see an answer to this question in Justice Scalia's majority opinion.