Making a Series of Rebuttable Presumptions

Publication Title

The Environmental Forum

Document Type

Article

Abstract

Statutory construction has always been a bit of an adventure. Even if we are all textualists now, myriad tools and canons guide meaning. There is no single path through the thicket. Consider the Supreme Court’s latest round of environmental decisions. Everything from common sense to dictionaries, pre-enactment history to ill-defined context, informs the Court’s reading of bedrock environmental statutes. Reaching consensus on a single best reading is challenging. And yet, using independent judgment to determine the single best reading of a statute is exactly what Loper Bright instructs lower courts to do.

So what happens when this decision leaves statutory interpretations open to ad hoc approaches by individual jurists? Is environmental law doomed to fluctuate with the sensibilities of different jurists—or can it be independently stabilized?

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