January 09, 2024

Environmental, Natural Resources, & Energy Law Blog

The Statutory Interpretation of Environmental Law: Establishing a New Normative Framework - Stenseng

The Statutory Interpretation of Environmental Law: Establishing a New Normative Framework

K.A. Stenseng[1]

LLM Blog
December 10, 2023

I. Introduction

Many commentators have scrutinized the Supreme Court (and its justices) for authoring decisions with potentially negative environmental consequences.[2] The Supreme Court decision in Sackett v. Environmental Protection Agency, represents a particularly divisive example where the Supreme Court severely limited the scope of the Clean Water Act (“CWA”) in its interpretation of the meaning of the word “adjacent” regarding the classification of wetlands.[3] Professor Richard Lazarus called it “an unprovoked hit job on the nation’s ability to protect its waters from harmful pollution.”[4] Justice Kagan, in her concurrence, criticized the majority in similar terms to West Virginia v. Envtl. Prot. Agency,[5] “[t]he vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy.”[6] A key issue with these reactions is that they blend policy arguments and legal analysis when evaluating the perceived negative consequences of the decision. This raises the key question: how should we evaluate court decisions?

Developing a system for evaluating court decisions (and their critiques) is directly related to jurisprudence and our methods of statutory interpretation.[7] Unfortunately, legal scholarship lacks any consensus on the best method of statutory interpretation. “… American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”[8]

This blog is the first of a two-part series where I propose a New Normative Framework for disentangling policy arguments from legal analysis when evaluating legal norms, like those created by court decisions. I describe this system as a ‘New Normative Framework’ because it establishes a prescriptive system for analyzing court outcomes, legal scholarship, and other issues related to jurisprudence.

The first blog will develop the foundation for a logical method of interpreting the validity of legal norms and, by extension, how we can assess critiques of legal norms (e.g., legal scholarship evaluating court decisions). The second blog applies my proposed framework to the Sackett decision.

The arrangement of this blog proceeds as follows. First, I introduce legal positivism and its relevance to disentangling facts and morals from positive law. Second, I introduce Hans Kelsen’s perspectives on interpretation within legal positivism and offer my own critiques. Third, I introduce textualism. Fourth, I connect textualism to legal positivism. Finally, I introduce my New Normative System for how legal positivism and textualism may be used to evaluate legal outcomes and critiques of legal outcomes.

My objective is twofold: first, to demonstrate how legal positivism and textualism provide substantive bases for evaluating the validity of legal norms (i.e., the validity of court decisions, statutes, or executive action). Second, to establish a logical foundation for critiquing court decisions and legal scholarship that infuse factual and policy arguments into evaluating legal norms, where there is no basis in positive law.

II. Concepts of Law and Interpretation of the Law

A. Legal Positivism

Legal positivism seeks an objective description of what the law is.[9] It is a legal philosophy for describing what makes the law, law. Positivists define law based on formal criteria of legal validity.[10] In contrast, other theories like legal realism, contend that law is that as it is actually experienced by people.[11]

One legal positivist was Hans Kelsen, a legal philosopher, professor, and author of the Constitution of Austria.[12] Kelsen’s ‘Pure Theory of Law’ distinguishes law from both facts and morals. Kelsen rationalizes this by describing a system of law as a normative social order that prescribes what ought to be; or in the case of human behavior, how one ought to behave.[13] These norms are enforced via the law’s socially organized coercive order.[14] A ‘norm’ “is the meaning of an act by which a certain behavior is commanded, permitted, or authorized.”[15]

“[The Pure Theory] only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of the law from alien elements.”[16]

Again, the two primary alien elements we are concerned with are facts and morals. Facts or actions can be distinguished from law because their objective existence is independent from the force of law.[17] Congress passing a statute is a factual occurrence that exists independent from the validity of the legal norm it represents, for example.

Unlike facts, which are not normative, morals do prescribe oughts. This leads to perhaps the most controversial and other key feature of legal positivism: the claim that morals and law have no necessary connection, even if law itself may express moral content.[18] As Kelsen stated:

The fundamental difference between law and morals is: law is a coercive order, that is a normative order that attempts to bring about a certain behavior by attaching to the opposite behavior a socially organized coercive act; whereas morals is a social order without such sanctions. The sanctions of the moral order are merely the approval of the norm-conforming and the disapproval of the norm-opposing behavior, and no coercive acts are prescribed as sanctions.[19]

It might be “good” to recycle because it reduces waste. However, without a legal norm that authorizes a punishment for not recycling, there is no socially organized sanction for not recycling. There is only the disapproval of the norm-opposing behavior (throwing away recyclables).

Kelsen observes that the various meanings of law all ascribe to “orders of human behavior.”[20] A system of norms that is unified by the reason for their validity constitutes a single “order”.[21] The reason for validity is the basic legal norm or grundnorm.[22] For a single norm to be a valid legal norm, it must: 1) correspond to the idea of “law”; and 2) be part of a legal order.[23] A norm is part of a legal order, “if its validity is based on the basic norm of that order.”[24] The traceability of lower-class norms to higher-class norms establishes the hierarchical structure of a legal order.[25] At the national level a constitution is usually the highest level of positive law.[26] Lower level norms (statutes or legal decisions) are thus the will embodied by acts carried out by legal organs (e.g., legislatures, judges, bureaucrats).

The validity of a law does not depend on the actual fact or will of a legal organ’s actions.[27] The mere fact that some event occurs, as such, is not an act of legal cognition.[28] The validity of a statute is based upon its validity as a norm within a legal order.[29] “The norm is the meaning of an act of will, not the act of will.”[30] Put differently, Congress’ passage of a statute is not the actual norm, but it is the act of Congress’ will.[31]

1. Interpretation of Legal Norms

How should we interpret legal norms found in statutes and court decisions? Legal organs, in carrying into effect the norms of a legal order, must interpret higher level norms and apply them.[32] Legal interpretation is necessary because legal norms are indefinite—either intentionally or unintentionally, or in their relativity to other norms.[33] When a legal norm is created, we cannot know the full content of the norm.

Consider the CWA, defining “navigable waters” as “waters of the United States.”[34] The meaning of this term within the normative framework of the CWA has been taken up by the Supreme Court in not only Sackett, but also three other major decisions.[35] The ongoing controversy of the jurisdictional requirements of the CWA demonstrates the indefiniteness of legal norms.

Legal interpretation can only ascertain possible acceptable outcomes within the given legal frame.[36] A court, for example, engages in interpretation of higher norms when it issues a decision. The decision requires the court to interpret the scope of a legal norm and is only one possible outcome the court could have reached in its consideration of the many different possibilities authorized by the higher norm-creating norm.

The act of interpretation by legal organs, carries the effect of creating new lower-level norms or is the carrying out of some coercive act (e.g., a punishment for breaking the law) required by the higher norm that is being applied.[37] Other methods of interpretation, by individuals or legal scientists,[38] are non-binding, or non-norm creating.[39] In other words, scholarly opinions (the work of legal scientists) on the law have no legally enforceable value.

Kelsen argues that positive methods of law interpretation cannot be characterized as being singularly correct, assuming that multiple interpretations are available.[40] I agree. Kelsen goes further and claims that all methods of interpretation are valid.[41] He argues a method of interpretation that considers only the “presumed will of the legislator” is as valid as a method which strictly adheres to the wording and “pay[s] no attention to the (usually problematical) will of the legislator.”[42], [43] Kelsen’s argument appears contradictory but seems reconcilable because, presumably, any method of interpretation that does not follow the normative structure of the legal system would be null.[44] Although “unconstitutional” statutes are usually treated as valid until they are invalidated under the procedure authorized by a legal order.[45] In other words, if Congress were to enact a statute that violated the Constitution, it would be treated as valid until a court, with power of review, invalidated the legal norm the statute represents according to norms prescribed by the Constitution.

The validity of methods of interpretation under positive law are relevant because of how court decisions are rationalized. Courts often rationalize decisions based on legislative intent.[46] In this case, legislative intent must be distinguished from acts of will. First, legislative intent is not an act of will to create a norm because its objective meaning is not a legal norm. Second, the individual intent of a legislator cannot be representative of the total will of a multi-member body, like Congress. Individual members may intend a certain will in the passage of a statute, but that will is not the act of will of the whole body. Lastly, in the American context, legislative intent cannot be positive law because legislative intent does not meet the formalist requirements of what constitutes a legal norm under our legal order.[47]

Once the prerequisite norms for achieving the validity of a statute are met, the passage of the text of the statute is the act of will creating a norm.[48] Any system aimed at understanding the law, on the order of statutes, must be directed at understanding the text.[49]

B. Textualism

As described above, legal positivism offers a normative system of describing what the law is. Following this, textualism provides a framework for understanding what the law means. Unfortunately, as observed by Justice Scalia, there is little consensus on the appropriate methods of statutory interpretation.[50] Justice Scalia argues that even the objective of statutory construction is unclear for some.[51]

To resolve these issues, Justice Scalia suggests that courts seek out the objective intent of the legislature when construing statutes.[52] Objective intent means “the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”[53] Textualism, “in its purest form, begins and ends with what the text says and fairly implies.”[54] The precise danger of relying on legislative intent is that it invites courts to engage in judicial lawmaking, rather than statutory interpretation.[55]

III. Connecting Legal Positivism and Textualism

Textualism’s focus on understanding the text of the law demonstrates its relationship to formalism and legal positivism. Textualism rejects outside methods of construction, like legislative intent,[56] because they are atextual.[57] But, also for the reason that it is “the law that governs, not the intent of the lawgiver.”[58] As previously demonstrated, at least in our American system, legislative intent that is not part of a legal norm cannot be positive law.

Legal methods of interpretation, like purposivism and consequentialism, which consider facts and morals, also cannot form the basis of positive law because they allow the judiciary to import its own political morality to resolve interpretive questions of the law.[59] This is contrary to legal positivism, and contrary to the goals of textualism.[60]

Purposivism and consequentialism deliberately allow judges to consider non-legal norms, facts, and their own “purposes” or self-desired “consequences.”[61] Positive law prohibits consideration of norms like morals or justice, unless some other norm authorizes their consideration as meta-legal.[62] For example, the legislature’s power to create statutes contains no inherent limitation on creating statutes with moral content.

When Justice Scalia speaks of “the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris,”[63] he is talking about the legal norm, which is the objective meaning of the act of will, placed alongside the remaining normative structure of the legal order. Textualism gives us a methodological framework for investigating the meaning of legal norms. It is a logical inquiry into the normative structure of our system of law based on the jurisprudence of legal positivism.

IV. Leveraging Legal Positivism and Textualism for a New Normative Framework

These concepts, joined together, form the basis for my New Normative Framework to evaluate court decisions and other actions by legal organs. Independently, legal positivism and textualism are insufficient to fully evaluate court decisions and critiques on their own. This is because legal positivism is a theory of what constitutes the law—it does not provide us a methodology for interpreting the meaning of the law’s content. Textualism, on the other hand, does provide a logical framework for analyzing meaning, but it alone does not help us rationalize facts, morals, and law. Legal positivism allows us to evaluate the reasoning distinguishing facts, morals, and positive law.

My proposed framework employs both tools together in a two-step process. First, utilizing legal positivism, we may identify whether court decisions or critiques rely on facts or morals to reach their conclusion. Accordingly, these facts and moral policy arguments can be evaluated for consistency with the system of law. Second, textualism can be utilized to evaluate an objective meaning behind any statute in question.

Using these two in conjunction can tell us two things. First, legal positivism explains whether a court’s interpretation of a statute is consistent with legal positivism’s rejection of facts and morals as legal norms. Decisions and critiques that rely on legal norms can then proceed to a textual analysis to determine whether the critique or outcome is consistent with an objective interpretation of the text. Decisions and critiques that rely on facts or morals can alternatively be addressed separately from a substantive legal analysis and solely on their policy merits. These policy claims can then be directed to Congress, the appropriate branch for such considerations, rather than the judiciary.

In my next blog, I will analyze Sackett and some critiques to demonstrate where the decision and critiques use facts and morals in their conclusions, thereby violating the normative structure of positive law. Second, I will engage in a textualist analysis of the Sackett decision and its critiques.

IV. Conclusion

I would like to close by emphasizing that I do not necessarily disagree with the wealth of environmental concerns facing our planet. However, it is emphatically not the purpose of the judiciary to legislate these issues through court decisions. The New Normative Framework articulates the connections between legal positivism and textualism and strengthens the scholarship of statutory interpretation.

Legal positivism and textualism can be powerful tools for evaluating court decisions and their critiques. By establishing a New Normative Framework for how we approach our analysis of the law and how we critique it, we can separate moral policy arguments from a Pure Theory of Law. This approach eliminates the tendency of courts and legal scholarship to rely on facts and morals that are not positive law when reaching their conclusions and redirects legal interpretation back to the objective meaning of a statute, the legal norm.


[1] Kiefer Armitage Stenseng works as a deputy prosecuting attorney in Eastern Washington and is an LLM student at Lewis & Clark Law School. The views expressed herein are the views of the author alone and should not be construed to reflect the views of his employer, affiliates, or institution.

[2] Steve Kennedy, The Supreme Court’s Utter Disregard for Science Is Somehow About to Get Worse, SLATE (December 4, 2023, 5:45 AM), https://slate.com/news-and-politics/2023/12/supreme-court-vs-science.html (claiming conservative justices are anti-science); Evan Bush and Denise Chow, Climate activists poised to shift focus to states, businesses after EPA ruling, NBC NEWS (June 30, 2022, 3:14 PM), https://www.nbcnews.com/science/environment/wv-vs-epa-decision-blow-climate-activists-see-options-rcna36124 (“The Supreme Court’s decision, which hamstrings climate action at the federal level, is a significant blow.”).

[3] Sackett v. Envtl. Prot. Agency, 598 U.S. 651 (2023) (Sackett).

[4] Richard J. Lazarus, Judicial Destruction of the Clean Water Act: Sackett v. EPA, 8/11/23 U. Chi. L. Rev. Online 1 (2023) (Available online at: https://lawreview.uchicago.edu/judicial-destruction-clean-water-act-sackett-v-epa) (last accessed: 12/8/2023).

[5] 597 U.S., 142 S.Ct. 2587 (2022).

[6] Sackett, 598 U.S. at 715 (Kagan, J., concurring).

[7] Jurisprudence refers to the science of law. Hans Kelsen, The Pure Theory of Law 355 (Max Knight trans., University of California Press 2d ed. 1970) (1960). Kelsen, who we will take up fully shortly, uses the term science of law to refer to the study of the law generally. In this sense, a person studying the law is a legal scientist.

[8] Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 14 (Princeton University Press, A New Edition 1997) (“Interpretation”) (quoting Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1169 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).

[9] Suri Ratnapala, Jurisprudence 27 (3rd ed. 2017).

[10] Id. at 31.

[11] Id. at 30; Oliver Wendell Holmes Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897).

[12] Kelsen sought to extend Kant’s transcendental idealism by applying it to the law. This blog does not offer me the space necessary to fully explore the relationship between Kant’s theories and Kelsen’s. For more on this subject and the origins of legal positivism, see generally Ratnapala, supra note 9. Another notable figure was H. L. A. Hart, Professor of Jurisprudence at the University of Oxford from 1952-1969. Hart shares many characteristics with Kelsen, but his views are founded more on empiricism, rather than German idealism. See H. L. A. Hart, The Concept of Law (2d ed. 1997).

[13] Kelsen, supra note 7, at 4.

[14] Id. at 44-45.

[15] Id. at 5. Put another way, when the legislature passes a law, the act is the passage of the law. The meaning of that act, or the will of the legislature is the actual norm.

[16] Id. at 1.

[17] Id. at 2-5.

[18] Ratnapala, supra note 9, at 28; Kelsen, supra note 7, at 67 (“[T]he validity of a positive legal order does not depend on its conformity with some moral system.”).

[19] Kelsen, supra note 7, at 62.

[20] Id. at 31.

[21] Id.

[22] Id. at 8, 31.

[23] Id. at 30-31.

[24] Id. at 31, 221-22.

[25] Id. at 221-22; see also Ratnapala, supra note 9, at 85 Figure 4.2 (diagramming a hypothetical tree structure of the normative system of law).

[26] Kelsen, supra note 7, at 221-22; Ratnapala, supra note 9, at 79-80.

[27] Kelsen, supra note 7, at 3, 4.

[28] Id.

[29] Id.

[30] Id. at 10.

[31] A critic of Kelsen, Joseph Raz, disagreed on this point. For an introduction to Raz’s criticisms (and their shortcomings), see Ratnapala, supra note 9, at 86-87.

[32] Kelsen, supra note 7, at 348.

[33] Id. at 349-50.

[34] 33 U.S.C. § 1362(7).

[35] See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006); Sackett, supra note 2.

[36] Kelsen, supra note 7, at 351.

[37] Id. at 354.

[38] See supra note 7.

[39] Id. at 354-56.

[40] Id. at 352.

[41] Id.

[42] Id.

[43] In this case, will of the legislator refers to the authorized act to establish norms. Id. at 4-5. “[A]cts whose meaning are a norm are acts of will.” Id. For an earlier example of acts of will, see supra Section A. Legal Positivism.

[44] Kelsen, supra note 7, at 267-76.

[45] Id.

[46] See e.g., Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1043-44 (D.C. Cir. 1978) (relying on Legislative History, statements by Senator Muskie, Senator Buckley, and Senate Hearing testimony to rationalize the Court’s affirmation of E.P.A.’s refusal to consider the receiving capacity of waters in setting discharge limitations).

[47] See Interpretation, supra note 8, at 24-25 (discussing how law by its very nature is formalistic); Ratnapala, supra note 9, at 74.

[48] C.f. Kelsen, supra note 7, at 10.

[49] Interpretation, supra note 8, at 16, 22-23; See Kelsen, supra note 7, at 348.

[50] Interpretation, supra note 8, at 16-17.

[51] Id.

[52] Id. at 17 (citing Joel Prentiss Bishop, Commentaries on the Written Laws

and Their Interpretation 57–58 (Boston: Little, Brown, & Co. 1882) (emphasis added) (citation omitted)).

[53] Id

[54] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012).

[55] For Justice Scalia’s views on how the case Church of the Holy Trinity, 143 U.S. 457 (1892), exemplifies judicial lawmaking masquerading as legislative intent, see Interpretation, supra note 8, at 18-25.

[56] Assuming that legislative intent could actually exist.

[57] Interpretation, supra note 8, at 17.

[58] Id.

[59] Scalia & Garner, supra note 53, at 22-23.

[60] Kelsen, supra note 7, at 106-107; Scalia & Garner, supra note 54, at xxvii.

[61] Kelsen, supra note 7, at 2-5, 62; Scalia & Garner, supra note 54, at 16-17.

[62] Kelsen, supra note 7, at 354.

[63] Interpretation, supra note 8, at 17.