Debates about textualism are now more practical than black-and-white arguments whether it is inadequate or the only true way to interpret law. This is likely because textualism is now the dominant method of interpretation on the U.S. Supreme Court. And yet, the textualist justices have begun interpreting environmental laws differently. Two current discussions help explain why. First is a methodological divide within textualism: flexible textualism versus strict (“formalist”) textualism. Second is what Kevin Stack calls “the enacted purposes canon,” which strict textualists use to resolve genuine textual ambiguities by staying true to textualism’s principle of restraint.
This Note first examines how textualism’s plain meaning rule requires the enacted purposes canon. Next, it examines the Clean Water Act and its purposes section, which is ideal for interpretation under the enacted purposes canon because of its clarity, specificity, and comprehensiveness. Finally, it examines the conservative split in Sackett v. EPA, finding flexible textualism in Justice Alito’s majority opinion and strict textualism in Justice Kavanaugh’s concurrence. The Sackett example illustrates how interpreting the 1970s federal environmental statutes is the perfect test of whether textualism can work as intended: textualism’s success depends on principled judges’ good-faith restraint and deference to legislatures.
