Beyond Absurdity: Climate Regulation and the Case for Restricting the Absurd Results Doctrine

• Publication year: 2021

BEYOND ABSURDITY: CLIMATE REGULATION AND THE CASE FOR RESTRICTING THE ABSURD RESULTS DOCTRINE

Katharine Kirklin O'Brien

Abstract: The absurd results doctrine of statutory interpretation allows courts to depart from clear legislative text when a literal reading would be "absurd. " Traditionally, courts defined an absurd result as one that offends fundamental social values. Over time, however, courts have expanded the concept of legal absurdity to include outcomes that do not violate moral principles, but instead present regulatory burdens deemed too onerous to reflect congressional intent. In June 2010, the U.S. Environmental Protection Agency (EPA) invoked this expansive reading of the absurd results doctrine to support a regulation known as the "Tailoring Rule," which the agency promulgated as part of its first effort to regulate climate-changing greenhouse gases under the Clean Air Act (CAA). The CAA explicitly states that facilities emitting any regulated air pollutant in excess of specific quantities must obtain a permit from the EPA or authorized state agencies. The Tailoring Rule, however, raises the statutory permitting threshold for facilities that emit greenhouse gases, on the ground that applying the existing thresholds to greenhouse gas emitters would be so burdensome for the agency and industry as to constitute an absurd result. While the Tailoring Rule illustrates the practical expediency of an expansive absurd results doctrine, it also demonstrates the doctrine's inconsistency with the constitutional separation of powers, administrative law principles, and the mandate of federal environmental statutes. Focusing on the example of environmental law and the Tailoring Rule in particular, this Comment argues that courts should restrict the absurd results doctrine to its traditional scope and reject arguments that a certain degree of congressionally mandated regulation is absurd as a matter of law.

INTRODUCTION

The Administrator concludes that . . . the case for finding that greenhouse gases in the atmosphere endanger public health and welfare is compelling and, indeed, overwhelming . . . . The evidence points ineluctably to the conclusion that climate change is upon us as a result of greenhouse gas emissions . . . and that the effects will only worsen over time in the absence of regulatory action. The effects of climate change on public health include sickness and death . . . . The effects on welfare embrace every category of effect described in the Clean Air Act's definition of "welfare" and, more broadly, virtually every facet of the living world around us . . . . In both magnitude and probability, climate change is an enormous problem. The greenhouse gases that are responsible for it endanger public health and welfare within the meaning of the Clean Air Act.

U. S. Environmental Protection Agency(fn1)

"Absurd": ridiculously unreasonable, unsound, or incongruous . . . having no rational or orderly relationship to human life: meaningless.

Merriam-Webster English Dictionary(fn2)

In June 2010, amid heated controversy over the federal government's response to climate change,(fn3) the U. S. Environmental Protection Agency (EPA) published a regulation known as the "Tailoring Rule" as part of its first efforts to regulate climate-changing greenhouse gases under the Clean Air Act (CAA).(fn4) As written, the CAA requires facilities that emit more than 100 or 250 tons per year of a conventional air pollutant(fn5) to obtain a permit from the EPA or authorized state agencies. (fn6) The Tailoring Rule, however, presents the EPA's interpretation that this threshold does not apply to emissions of greenhouse gases.(fn7) Based on this interpretation, the EPA substitutes a 100,000-tons-per-year threshold for greenhouse gas emissions,(fn8) effectively exempting sources that produce less than 100,000 tons of greenhouse gases annually from immediate compliance with the statute.(fn9) A cursory glance at the rule raises the question: how can an agency "interpret" a statute so as to revise the permitting requirements numerically expressed in its text?

The EPA's answer rests in part on the "absurd results" doctrine,(fn10) a canon of statutory interpretation that has been "a staple of American legal culture since the founding. "(fn11) As traditionally understood, the doctrine justifies a court's departure from the plain meaning of a statute when applying the statute literally would contravene fundamental social values and common sense.(fn12) As the Tailoring Rule illustrates, however, agencies now invoke the doctrine to justify their departure from facially clear statutory language(fn13) when applying the statute as written would present unmanageable regulatory burdens.(fn14) Under this expansive view of the doctrine, a judge may declare a literal statutory interpretation absurd, thereby rendering the provision inapplicable, on the ground that it affects an overly broad set of actors or that its mandate would be too burdensome to implement.(fn15)

The Tailoring Rule marks the outer bounds of the contemporary absurd results doctrine. The EPA's justification for revising the CAA's permitting thresholds is that greenhouse gases, unlike other regulated pollutants, are produced by hundreds of thousands of small entities in quantities exceeding the 100/250-tons-per-year threshold prescribed in the statute. (fn16) As a result, the EPA estimated that applying the Act as written to greenhouse gas emitters would make the statute's permitting programs several hundred-fold larger.(fn17) While not disputing the CAA's applicability to greenhouse gas emissions,(fn18) the agency concluded that the sheer magnitude of regulation dictated by a literal application of the statute, and the attendant burden on permitting authorities and industry, constitutes an absurd result that Congress could not have intended.(fn19) Therefore, the EPA concluded that the CAA does not require permits for sources of greenhouse gases according to the thresholds prescribed in its text.(fn20)

The expansive interpretation of absurd results adopted in the Tailoring Rule magnifies a longstanding critique that the absurd results doctrine allows executive and judicial actors to depart from statutory text in contravention of the constitutional separation of powers. (fn21) When an administrative agency invokes the doctrine, it also circumvents the limits on its interpretive discretion established by the U.S. Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council(fn22) by adopting an independent construction of a facially clear statute.(fn23) Moreover, because the doctrine fails to provide stable criteria for defining and remedying a purported absurdity,(fn24) there is no clear limit to the statutory revisions it could sanction.

These concerns are particularly acute in the context of contemporary environmental law. In the absence of affirmative congressional action to address climate change, litigants seeking redress for climate-related harms are exerting new pressure on existing environmental statutes.(fn25) Authorizing administrative and judicial interpretations that contravene facially clear legislation under the banner of absurd results could dismantle the regulatory machinery of federal environmental laws by giving agencies and judges license to revise statutory mandates that they deem overly onerous.

Focusing on the example of environmental law,(fn26) this Comment argues that courts should reject expanded application of the absurd results doctrine as inconsistent with the separation of powers, administrative law principles, and the mandate of federal environmental statutes. Part I describes the traditional formulation of the absurd results doctrine. Part II discusses how courts have expanded the concept of absurd results beyond its traditional sphere. Part III tracks this expansion in litigation under federal environmental statutes and highlights the specific issues raised by those cases. Using the example of the Tailoring Rule and the litigation challenging it,(fn27) Part IV argues that courts should reject administrative interpretations that a certain degree of congressionally mandated regulation is absurd as a matter of law.

I. COURTS TRADITIONALLY DEFINED "ABSURD RESULTS" AS OUTCOMES OFFENSIVE TO FUNDAMENTAL SOCIAL VALUES

Based on the presumption that Congress intends to legislate rationally, courts traditionally employed the absurd results doctrine only when a literal statutory interpretation would offend fundamental social values and could not be ascribed to any rational policy choice. (fn28) In this way, courts justified the absurd results doctrine as a means of implementing legislative intent.(fn29)

A. Historically, the Absurd Results Doctrine Authorized Departure from Statutory Text Only When a Literal Interpretation Would Contravene Fundamental Social Values

The principle that judges should construe statutes to avoid absurd results is firmly established in the American legal system,(fn30) with origins traceable to early English common law. (fn31) In the traditional view, the judicial obligation to apply statutory text is suspended when "the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application."(fn32) As the doctrine developed through the...