Plain Meaning, Precedent, and Metaphysics: Lessons in Statutory Interpretation From Analyzing the Elements of the Clean Water Act Offense

Date01 April 2016
4-2016 NEWS & ANALYSIS 46 ELR 10297
Plain Meaning,
Precedent, and
Lessons in
From Analyzing
the Elements of
the Clean Water
Act Offense
by Jerey G. Miller
Jerey Miller is Professor of Law Emeritus, Pace Law School.
is Article, the f th in a series of ve, completes
the author’s detailed analysis of how federal courts
have interpreted each element of the Clean Water
Act (CWA) oense. Compiling statistics across the
four prior articles, it draws conclusions about statu-
tory interpretation in general, nding that the depth
of legal analysis increases with the level of court; that
environmentally positive results decrease with the
level of court; that courts use only a small number
of canons and other interpretive devices; that their
uses of interpretive devices change over time; and that
interpretive devices are not all outcome-neutral. e
author also draws other lessons about statutory inter-
pretation that are specic to each element, and to the
language and history of the CWA.
This Article completes the discussion of statutory
interpretation of the elements of the Clean Water
Act (CWA)1 oense: (1)any addition (2)of any pol-
lutant (3)to navigable waters (4)from any point source
(5)by any person, except in compliance with a CWA per-
mit.2 It augments the author’s other recently published
analyses for of those elements.3
Many of the overarching observations made here are
common sense. For instance, although law review edi-
tors might demand a citation for the conclusion that plain
meaning and precedent are the most commonly used statu-
tory interpretation devices, most lawyers, judges, and legal
scholars would agree with that assertion from their experi-
ences, without further authority. After all, most text means
what it says and if there is precedent that particular text
means what it says, so much t he better. is Article pro-
vides strong, quantied evidence to verify the common-
sense proposition. e Article’s database is too narrow to
provide proof positive, but there is no reason to believe that
the conclusion is a function of that database. Studies of the
interpretation of the CWA as a whole or of other statutes
will undoubtedly reach the same conclusion and establish
the proposition as a fact. Where text has no clear meaning
or is ambiguous, plain meaning won’t help much; and if
the interpretation is a matter of rst impression, precedent
may not help much either. In those situations, other inter-
pretive devices must be used.
Other observations made here are similarly common
sense. For instance, consider the conclusion that, for the
most part, plain meaning predominates as a canon of stat-
utory construction for the initial interpretations of a partic-
ular statutory text, but over time, precedent predominates.
At the outset, there is no precedent available for most text,
but hopefully there is plain meaning. Over time, as prec-
edent becomes available, it supplements or even supplants
plain meaning. e data set studied in these articles dem-
onstrates that conclusion well. It contains t hree data sub-
1. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607. Section 301(a),
33 U.S.C. §1311(a), sets out the CWA oense.
2. Section §301(a) prohibits the “discharge of any pollutant” except in compli-
ance with a CWA permit. Section 502(12), 33 U.S.C. §1362(12), denes
“discharge of a pollutant” as the multi-element oense printed in the text.
e statute denes “pollutant” in §502(6), “navigable waters” in §502(7),
“point source” in §502(5), and “person” in §502(14). It does not dene “ad-
dition.” (e author’s series of articles (see note 3, below) do not examine
the fth element, “person,” because it has not given rise to signicant litiga-
tion or controversy.)
3. Jerey G. Miller, 
     , 44 ELR 10770 (Sept.
2014);    -
  , 44 ELR 10960 (Nov.
2014);     -
, 45 ELR 10548 (June
2015); and       
, 45 ELR 11129 (Dec.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
sets where the proposition proves true and one data subset
where it does not, and provides a logical and demonstrable
reason why the outlying data subset does not conform to
the general conclusion. Again, the database is too narrow
to provide proof positive of the proposition, but there is no
reason to believe that it is a function of the composition of
the database.
Finally, some of the observations made here relate
entirely to the interpretations of the particular texts stud-
ied. For instance, consider t he issue of why courts have
interpreted the element “navigable waters” twice as often
as t hey have interpreted any of the other elements of the
CWA oense. is Article concludes the reason is that the
ratio of decisions under CWA §402, 33 U.S.C. §1342, to
decisions under CWA §404, 33 U.S.C. §1344, is strongly
weighted toward §404 in decisions interpreting the navi-
gable waters element, but not in decisions interpreting the
other elements. is observation and its consequences are
entirely functions of the composition of the database exam-
ined. e observation may prove u seful in understanding
the interpretation of this a nd other CWA text in which
both CWA §§402 and 404 operate, but the observation is
unlikely to be useful beyond interpreting the CWA. At the
same time, asking analogous questions about interpreta-
tions of other statutory texts may lead to similarly illumi-
nating observations.
e author’s four earlier articles examining the ele-
ments of the CWA oense consider 258 decisions—a ll of
the reported decisions between 1974 and 2013 interpreting
the rst four elements4 of the water pollution oense that
the author could locate.5 ere may be others, especia lly
in unocial reporters. If others exist, however, they are
infrequently cited and hence are not important decisions
for these interpretive issues. In any event, the universe of
the opinions analyzed is broad enough to support the con-
clusions reached in the earlier articles and to support or
suggest the conclusions reached in this Article. It should
be noted that because many of the decisions interpret more
than one element of the oense, the total number of judi-
cial interpretations analyzed in the four earlier articles is
347.6 Some of the pertinent data from the judicial interpre-
tations are summarized in Table B at the end of this Arti-
cle.7 Some of that data is objective—for example, a deci-
sion in a case brought under CWA §§402 or 404. Some of
the data is reasonably objective—for example, a decision
4. e articles do not examine the fth element, “person,” because it has not
given rise to signicant litigation or controversy.
5. See the decisions listed in Table A at the end of this Article.
6. Count the numbers of judicial interpretations for each element listed in Table
B at the end of this Article: 63 for Addition, 70 for Pollutant, 142 for Naviga-
ble Waters, and 72 for Point Source. Add the sums to derive the total number
of judicial interpretations (347) in the 258 decisions listed in Table A.
7. Table B is displayed in four subparts, one each for Addition, Pollutant,
Navigable Waters, and Point Source. e data is drawn from but is slightly
dierent than the data in the Tables B from the earlier articles cited supra,
note 3. One dierence between the subparts in Table B to this Article and
the Tables B in the previously published articles is that the former use a
commonly numbered list of interpretive devices set forth on the rst page
of Table B herein, rather than the dierently numbered lists in each of the
earlier tables.
uses ve identied interpretive devices. Unless a decision
actually announces a nd labels each interpretive device it
uses, however, dierent readers may occasionally draw dif-
ferent conclusions on both the number and the identity of
the devices a decision uses. e author is reasonably certain
of his count and identication of the interpretive devices
used in the decisions, but is more sure that his count and
identication are consistent throughout.
e reader may be a ssuming that an interpretive device
is a canon of statutory construction. Most are, but inter-
pretive devices and canons of construction do not always
coincide. e issue is complicated because there is no agree-
ment on the number or wording of canons of construction.
Prof. William Eskridge documents the William Rehnquist
Court’s use of 87 canons to interpret federal statutes.8 Prof.
Bryan Garner and the late Justice Antonin Scalia discuss 53
canons in their book on the interpretation of legal text and
reject 13 ideas that others, including Eskridge, recognize or
use as canons.9 Because t here is no agreement on the uni-
verse of canons, some of the interpretive devices discussed
here may not appear in any existing catalogue of canons,
particularly the metaphor and metamorphosis devices.
Moreover, canons of construction are directive, that is,
they suggest what a particular statutory phrase means. For
instance, the plain meaning canon instruct s us to inter-
pret a statute to mean exactly what it says. Some interpre-
tive device s, however, are not directive. For instance, the
metaphor device does not direct a particular meaning,
but suggests a way of visualizing a n abstract lega l issue or
proposition to make it more understandable. e article
on “Addition” observes that metaphors have been quite
important in decisions interpreting that element.10 In those
decisions, the uses of metaphor are striking and memora-
ble, more so than the uses of canons of construction in the
decisions. is Article considers why metaphors have been
important in interpreting the “addition” element but not
the other elements.
e legitimacy of the canons of constr uction ha s
been subject to academic dispute for some time. Karl N.
Llewellyn noted more than half a century ago that for
every canon that may apply in a given situation, there is an
opposite canon, leading to the question whether the can-
ons have any value in statutory interpretation.11 Because
there is no canon instruct ing a court how to decide which
of two competing, opposite canons governs in a particular
situation, t he canons may be seen as just handy devices
for courts to justify the interpretive results to which they
are independently inclined. e canons a re sometimes
8. W N. E, D S C 323-33
9. A S  B A. G, R L: T I-
  L T (2012). Compare with the more extensive universe of
canons identied by Eskridge.
10. See supra note 3, 44 ELR 10793-94.
11. Karl N. Llewellyn, Remarks on the eory of Appellate Decision and the Rules
or Canons of How Statutes Are to Be Constructed, 3 V. L. R. 395, 401
(1950). For a more contemporary criticism of the same nature, see Richard
A. Posner, Statutory Interpretation—In the Classroom and in the Courtroom,
50 U. C. L. R. 800, 806 (1983).
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT