Justice Stevens made the same mistake before Justice Scalia

When the Supreme Court misrepresented federal law in Kennedy v. Louisiana, it took a blogger to catch the mistake.  When Justice Antonin Scalia was accused of making an “unprecedented” error in his EPA v. EME Homer City Generation dissent, it took a law student to discover that another justice had made the same mistake in an earlier opinion.

Richard Lazarus writes:

Thanks to one of my very sharp-eyed student research assistants here at Harvard (Gabe Daly, HLS Class of 2015), we may have tracked down a possible source of the error made by Justice Scalia’s chambers and Justice Scalia in EME Homer earlier this week when Scalia’s dissent surprisingly mischaracterized his own opinion for the Court in Whitman v. American Trucking Ass’n. A different Justice (Stevens) in a prior dissent in a different case (Entergy v. Riverkeeper) made a similar mistake about EPA’s position in American Trucking, albeit in a far more subdued, quieter fashion, and perhaps a clerk in Scalia’s chambers picked the erroneous thread up there and then tragically the clerk and Justice Scalia ran with it. Entergy was a case cited in the briefing in EME Homer because it also involved the authority of EPA to consider costs (there, in the form of cost-benefit analysis) in a particular provision of the Clean Water Act. (Disclosure: I was counsel of record for Riverkeeper in that case before the Court, and no I did not win, but should have!).

Of course, whether Stevens’ far quieter error in his Entergy dissent was the initial trigger for the Scalia EME Homer mistake I cannot know, but it strikes me as possible, and even if in fact played no role at all, this second, earlier misreading of American Trucking shows that the Scalia chambers was not alone in fundamentally misremembering the arguments of the parties in the case. Of course, this does not excuse Justice Scalia’s most recent error, which remains huge, both because it was Scalia’s own opinion for the Court in American Trucking (and therefore he is the last one who should make such a mistake) and because, unlike the prior instance with Justice Stevens, Scalia’s error was made very loudly and emphatically, surrounded by all rhetorical trumpets blaring. The fact of the earlier error, however, does underscore that Justice Scalia is not the only one on the Court, who finds environmental law a bit elusive to grasp, which should come as no surprise to those of us who teach (and love) it partly for that reason.

Here is the relevant portion of Justice John Paul Stevens’s dissent in Entergy with the offending language in bold:

When interpreting statutory silence in the past, we have sought guidance from a statute’s other provisions. Evidence that Congress confronted an issue in some parts of a statute, while leaving it unaddressed in others, can demonstrate that Congress meant its silence to be decisive. We concluded as much inAmerican Trucking. In that case, the Court reviewed the EPA’s claim that §109 of the Clean Air Act (CAA), 42 U. S. C. §7409(a)(2000 ed.), authorized the Agency to consider implementation costs in setting ambient air quality standards. We read §109, which was silent on the matter, to prohibit Agency reliance on cost considerations. After examining other provisions in which Congress had given the Agency authority to consider costs, the Court “refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted.” 531 U. S., at 467. Studied silence, we thus concluded, can be as much a prohibition as an explicit “no.”

I don’t know whether this was the source of Scalia’s error, or if it resulted from the complexity of the American Trucking case, in which the EPA was both a petitioner and respondent, or from something else.  It was an embarrassing error nonetheless.

It is also worth noting that Scalia wrote the majority opinion in Entergy, concluding that it was permissible for the EPA to consider cost-benefit analysis under the relevant portions of the Clean Water Act.  So while Scalia has twice argued against allowing the EPA to consider costs under the Clean Air Act, he has adopted a different view of the CWA.  Whether or not Scalia got each of these cases right, it’s not unusual for different environmental law statutes to operate in fundamentally different ways.

I also commend Eugene Volokh’s post on other errors in Supreme Court opinions.

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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