An Open Letter to Law Professors: Use This Case To Show Why Statutory Interpretation Is Not as Easy as It Sounds

By Derek Stikeleather[*]

The simplest rules and standards can often be the most confounding; just ask anyone who has had to divine whether an act was “willful.” The decisions of the Fourth Circuit and Supreme Court in CTS Corp. v. Waldburger offer a vivid case study of how the supposedly simple rules of statutory interpretation, which apply a statute’s “plain language” and “clear intent,” are anything but simple in practice. Both courts analyzed whether CERCLA’s express pre-emption of state-law statutes of limitations also pre-empts state-law statutes of repose. Last summer, a split panel of Fourth Circuit judges reversed a district court judge and held that CERCLA did pre-empt North Carolina’s statute of repose. But a divided Supreme Court, reversing again, held last week that it did not.

Media coverage of the Supreme Court’s June 9 decision generally cast CTS as an environmental law decision in which industry prevailed over landowners (or, more dramatically, polluters prevailed over the environment). But the two opinions are fundamentally statutory-interpretation opinions; they just happen to arise in an environmental law context. As such, they should be high on the reading list of anyone who wants to understand why seemingly straightforward “plain language” analysis can be so challenging.

Part of the combined opinions’ appeal is that they defy the cynical view that conflicting appellate opinions reflect merely the competing policy views of the appellate judges or their nominating sponsors/political parties. Certainly not here. The three split panelists on the Fourth Circuit were all President Obama’s nominees, with the (purportedly pro-plaintiff/environment) majority opinion authored by Judge Floyd, whom the Senate confirmed 96-0 to the Fourth Circuit in 2011 and whom President George W. Bush had appointed to the federal district court. Judge Thacker, a former federal prosecutor who had once served in the environmental division of the West Virginia attorney general’s office, penned the (purportedly pro-defendant/industry) dissent in the Fourth Circuit. At the Supreme Court, liberal Justices Sotomayor and Kagan joined Justice Kennedy’s (purportedly pro-defendant/industry) majority opinion. This was not Bush v. Gore.

The opinions go much deeper than the political, industrial, economic, or environmental policy issues raised by the case. They show judges earnestly struggling to organize competing rules of statutory interpretation and faithfully apply the law. The fact that so many gifted jurists could not agree on this seemingly straightforward question – the Fifth and Ninth Circuits also came to different conclusions – underscores how difficult their task was.

On many points of fact and law the judges were in complete agreement: (1) CERCLA is a remedial statute whose 1986 Amendments expressly pre-empt state-law statutes of limitations, (2) the North Carolina statute at issue was a statute of repose, (3) statutes of limitation and repose are not synonymous, and their definitions have changed over time, (4) the 1982 Study Group Report that Congress commissioned recommended that the 1986 Amendments to CERCLA adopt a discovery rule and repeal statutes of repose, (5) the goal of statutory interpretation is to effect Congressional intent, and (6) unambiguous text will be enforced according to its plain meaning. It was only the application of the rules of statutory interpretation that fractured their consensus.

In finding the North Carolina statute of repose pre-empted by CERCLA, the Fourth Circuit majority emphasized CERCLA’s remedial purpose and its specific intent to remove barriers to relief from toxic pollution. It noted that North Carolina codified its statute of repose in the same subsection as its statute of limitations and that the Congressional study group report was “equally concerned with statutes of repose and limitations.” For dissenting Justices Ginsburg and Breyer, in finding the statute of repose pre-empted, the “Fourth Circuit [majority] … got it exactly right.”

Dissenting in the Fourth Circuit, Judge Thacker reasoned that the plain and unambiguous language of CERCLA Section 9658, which expressly defines the phrase “statute of limitations,” indicated that only “statutes of limitations” were intended to be preempted. She further reasoned that even if the preemptive effect of Section 9658 were susceptible to two interpretations, a presumption against preemption would limit Section 9658’s preemptive reach to statutes of limitations without also extending it to statutes of repose. Recognizing “the role of legislative compromise,” she found the fact that the study group recommended repealing statutes of repose provided no basis for holding that they were preempted by a CERCLA provision that does not mention statutes of repose. In vindicating much of Judge Thacker’s dissenting view, the Supreme Court majority emphasized the fundamental differences between statutes of limitations and repose. It firmly rejected the Fourth Circuit majority’s use of the “proposition that remedial statutes should be interpreted in a liberal manner … as a substitute for a conclusion grounded in the statute’s text and structure.”

In these four opinions – six if we count the short concurring opinions by Judge Davis and Justice Scalia – we see the seemingly straightforward rules of statutory interpretation broken down by competing judicial principles. Although the Supreme Court presumably has the last word on any given legal question, CTS is unlikely to make the task of statutory interpretation any easier for appellate judges going forward. In the end, plain language is not so plain and clear legislative intent is not so clear.

---

[*] Editor’s Note: We’re happy to welcome Derek as a first-time guest blogger.