SARA's State Procedural Reform: Reading CTS v. Waldburger through Canons of Statutory Interpretation
45 Texas Environmental Law Journal 167 (2015)
47 Pages Posted: 16 Jun 2014 Last revised: 14 Aug 2015
Date Written: June 15, 2014
Abstract
This Article takes Justice Antonin Scalia and Professor Bryan A. Garner’s 2012 treatise Reading Law seriously by showing how the Supreme Court applied (or failed to apply) its canons of statutory interpretation in a recent decision evaluating a preemptive provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "Superfund") – CTS v. Waldburger. Justice Kennedy applied several semantic and contextual canons: the Ordinary-Meaning Canon, the Fixed-Meaning Canon, the Whole-Text Canon, and the Harmonious Reading Canon. As important, the Court plainly rejected a principle which Reading Law calls a "falsity": the false notion that remedial statutes should be liberally construed. The Court then divided over the potential applicability of a government-structuring canon: the Presumption Against Federal Preemption. Four members of the Court refused to apply the canon, instead following its narrower definition found in Reading Law. The Court concluded that CERCLA’s preemptive provision did not repeal state law statutes of repose.
The Article then further examines the same statute using two canons not relied on by the Supreme Court in Waldburger: (1) The Presumption Against Retroactivity and (2) The Constitutional-Doubt Canon. These canons also point toward a narrow – but distinct – construction – that the CERCLA statute only preempts statutes of limitation that affect only a remedy, not a right. Even this alternative narrower construction, however, fails to eliminate constitutional questions regarding Section 9658 under principles of federalism.
Suggested Citation: Suggested Citation