Hart/Scalia vs. Fuller/Breyer
There are shades of the Hart vs. Fuller debate in the disagreement between Scalia J. and Breyer J. in last week’s greenhouse gases case: UARG v. EPA. As part of a much wider debate about the relationship between law and morality, Hart and Fuller jousted over a rule prohibiting vehicles in the park. To simplify (perhaps oversimplify), Hart contended that the rule had a core of obvious application — e.g. cars — and a penumbra in which its application was not so obvious — e.g. bicycles. Fuller countered with the example of a military truck mounted on a pedestal as a war memorial (prohibited or not?), arguing that the rule could only be understood by reference to its underlying purpose — whether in the core or penumbra.
In the greenhouse gases case, Scalia plays the part of Hart and Breyer — with somewhat less aplomb — plays the part of Fuller. Recall from my earlier post that the Agency attempted to rewrite statutory thresholds at which regulatory requirements would kick in. The statute prescribed two limits of 100 and 250 tons annually. But lots of facilities emit this much greenhouse gas and it would have been completely impractical to regulate them all.
The disagreement between Scalia and Breyer hinged on the meaning of the phrase ‘any source’, as used in this provision for example: “The term ‘major emitting facility’ means any of [a list of specific categories of] stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant”.
For Scalia, the statute was clear: 250 and 100 tons were the limits and the EPA could not rewrite them. We were, Hart might have said, in the “core” of the meaning of the statute.
Breyer took a different tack:
As a linguistic matter, one can just as easily read an implicit exception for small-scale greenhouse gas emissions into the phrase “any source” as into the phrase “any air pollutant.” And given the purposes of the PSD program and the Act as a whole, as well as the specific roles of the different parts of the statutory definition, finding flexibility in “any source” is far more sensible than the Court’s route of finding it in “any air pollutant.”
Elsewhere, Breyer cites Fuller, though — revealingly, as we shall see — to his “Speluncean Explorers” essay. Revealingly because in this passage Breyer tries to combat Scalia on his own terms, suggesting that the term “any” has what Hart called an “open texture” such that it is permissible to read a qualification into the statutory provision.
The difficulty is that this is not really what the EPA did. They purported to rewrite the limits, not to exclude certain types of facility; the rewrite had the effect of excluding certain facilities, but this was secondary.
Later on, Breyer adopted more obviously Fullerian garb by focusing not on the alleged open texture of ‘any source’ but on the underlying purpose of the 100- and 250 ton limits:
Rather, the purpose was to limit the PSD program’s obligations to larger sources while exempting the many small sources whose emissions are low enough that imposing burdensome regulatory requirements on them would be senseless.
But this was intended as a point in support of his reading of ‘any source’. Breyer would have been on firmer Fullerian ground had he focused on this purpose and the lack of congruence between imposing the strict statutory limits and achievement of the broader purposes of the statute. Indeed, he also invoked the ‘anomalous’ result of Scalia’s reasoning:
It is anomalous to read the Act to require the EPA to regulate air pollutants that pose previously unforeseen threats to human health and welfare where “250 tons per year” is a sensible regulatory line but not where, by chemical or regulatory happenstance, a higher line must be drawn.
This, I think, cries out for an approving citation to Fuller’s The Morality of Law, or even “Positivism and Fidelity to Law — A Reply to Professor Hart”, where Fuller’s veneration of purpose and the importance of congruence between law on the books and law in action appears in its purest form.
Of course, that might have been too much even for Breyer. As Frederick Schauer has said of the Hart/Fuller debate:
One way of understanding Fuller…is as believing that the good judge is one who sets aside the plain language of the most directly applicable legal rule in the service of purpose, or of reasonableness, or of making law the best it can be, or of integrity, or of simply of doing the right thing….This is a question of role morality, and just as some would argue that justice is best done if lawyers fight for their clients and not justice, that truth may emerge from the clash of often false ideas, and that economic progress for all comes from the invisible hand of the market while individual economic actors pursue only their own well-being, it might be the case that the best legal system is one in which individual judges do not seek, or at least do not always seek, to obtain the all-things-considered best outcome. Neither Hart nor Fuller addresses this issue directly, but one cannot help believing that on this question it is Fuller who far more likely sees the justice-seeking judge and Hart who might understand that in law seeking justice is not always or necessarily part of the job description of either the lawyer or the judge
Breyer’s sympathies were very much with the Agency, allowing it to use its expert knowledge to re-work the statute. Scalia’s sympathies lay — perhaps unsurprisingly — with what he considered to be the plain text of the statute. It is perhaps significant, though, that Breyer did not take as radical a Fullerian position as he might have. Here, the EPA probably pushed the limits too far.
This content has been updated on July 5, 2014 at 14:21.