Before I even begin this post, an apology and/or warning: here we’re going to tackle some sticky legal questions, some of them theoretical. I fully recognize that lots of folks might not have much of a taste for the kind of jurisprudential nerdiness that is about to be on display here. If that’s you, I won’t be offended if you choose to quietly excuse yourself from the blog for a little while (just as long as you promise to come back!). It’s just that sometimes I get an intellectual itch that I have to scratch or it will drive me crazy. However, if you do stick around, I’ll do my best to try and make this interesting and worth your while. Deal? 

Here goes: in our discussion of the Oakland County Circuit Court’s dismissal of an Enbridge condemnation suit, we described the two arguments made by the defendants’ attorneys. One of those arguments– the one the Judge rejected– was that Michigan’s Crude Oil and Petroleum Act “excludes crude oil pipelines from the eminent domain acquisition process,” giving condemnation authority only to petroleum pipelines. Obviously, this argument depends upon making a distinction between petroleum and crude oil– a distinction that, some might think, defies ordinary common sense. After all, everybody knows that crude oil is a form of petroleum, right? To say otherwise is at worst sophistry and at best hairsplitting.

Or is it? The other day, we heard from Livingston County attorney Wendy Turner (who also happens to be a landowner on the Line 6B route and an intervenor in phase one). Like the Smiths’ attorneys, Wendy has argued that crude oil and petroleum might be construed as different. She asserts that while it may seem obvious today that “crude oil” and “petroleum” are the same thing, it is nevertheless the case that when Michigan legislators passed the Crude Oil and Petroleum Act in 1929, they did in fact distinguish between the two. She points to the Act itself::

Every corporation, association or person now or hereafter exercising or claiming the right to carry or transport crude oil or petroleum, or any of the products thereof, by or through pipe line or lines, for hire, compensation or otherwise, or now or hereafter exercising or claiming the right to engage in the business of piping, transporting or storing crude oil or petroleum, or any of the products thereof, or now or hereafter engaging in the business of buying, selling or dealing in crude oil or petroleum, within the limits of this state, shall not have or possess the right to conduct or engage in said business or operations, in whole or in part, as above described, or have or possess the right to locate, maintain, or operate the necessary pipe lines, fixtures, and equipment thereunto belonging, or used in connection therewith, concerning the said business of carrying, transporting or storing crude oil or petroleum as aforesaid, on, over, along, across, through, in or under any present or future highway. . . (483.1)

Note the underlined parts, the repeated use of the phrase “crude oil or petroleum.” Now, this is where I have to take a detour into some semantic nitpicking and some legal theory. I beg your indulgence.

You see, what we have stumbled upon here is really a problem of legal interpretation. There are two very different ways we might understand the phrase “crude oil or petroleum.” One way to understand that phrase is simply to adhere to the plain meaning of the language– this is what is called the “textualist” theory of legal interpretation. The textualist theory says that the best guide to understanding a law is to stick to its language, its plain and ordinary meanings. The textualist might look to the dictionary for some guidance, but otherwise, he or she will stick to the plain language of the statute in question. In the case just dismissed, Judge Alexander took a textualist approach. He said that according to plain, ordinary usage, “crude oil” is a form of “petroleum.” What could be clearer?

Well, not so fast. The textualist position could just as easily be seen as supportive of Wendy Turner’s argument. According to ordinary usage, the repeated use in the Act of the phrase “crude oil or petroleum” would seem to suggest that a distinction is being made. After all, if they’re the same thing, why bother mentioning both of them over and over? If you wanted to pass a law to regulate, say, carbonated beverages, you probably wouldn’t repeat the phrase “carbonated beverages or Pepsi,” since Pepsi is, quite obviously, a carbonated beverage. In fact, we often use the conjunction “or” when we want to list alternatives or when we want to draw out the difference between things: it’s either this OR that, black or white, up or down, fast or slow.

But there’s just one problem with this view. The meaning of “or,” it turns out, is not so obvious as it might seem at first glance either. Sure, we use “or” when we want to distinguish between things, but we just as often use “or” when we want to call attention to synonyms, when we want to show that things are the same– like when just above I said “when we want to list alternatives or when we want to draw out the difference between things.” There I mean that the items on either side of that “or” are very similar. In the same way, I might refer to “textualism or adherence to the plain meaning of the statute’s language”– those two things are more or less identical. Here’s one more example: the original title of Herman Melville’s most famous novel was Moby-Dick; or, The Whale— because he wanted to remind us that Moby-Dick is, indeed, a whale (in exactly the same way, one might argue, that crude oil is petroleum).

The point here is that while it might seem simple and clear at first glance, the textualist theory– basing an argument on the plain language of the statute, discerning the meaning of terms according to ordinary usage– doesn’t really help us as much as we might think. Ordinary usage, plain meanings are never quite as plain and ordinary as they seem. And in this case, ordinary usage can lead us in either direction.

But there is a way that we might decide between the two forms of ordinary usage I sketched above– and this is the second way we might try to understand the phrase “crude oil or petroleum.” We might find our answer to the question of which of those two meanings of “or” is the right one by asking what the legislators who passed the law actually intended. And in fact, that’s exactly what Wendy Turner is doing. She says that when legislators in 1929 passed the Crude Oil and Petroleum Act they intended to distinguish between crude oil and petroleum. That is, what the phrase “crude oil or petroleum” means is what the lawmakers who used that phrase in 1929 meant it to mean.

What we have here, then, is a different theory of legal interpretation– the “intentionalist” theory of legal interpretation– which holds that the best guide to understanding a statute is  knowing what the legislative body intended when they passed a law.

But notice this difference: if we take the intentionalist approach, we are no longer dealing primarily with semantic questions (what is the meaning of “or”? are crude oil and petroleum synonymous?). Instead, we are dealing with historical questions. What were legislators in 1929 thinking? Did people in 1929– no matter what ordinary usage is today– distinguish between crude oil and petroleum? What evidence do we have that the Michigan legislators who passed the Act made that distinction?

Well, some of that evidence we might find in the statute itself. There is, for example, still the matter of the repeated use of the phrase “crude oil or petroleum”– though we’ve shown how that is far from definitive. But then there is this:

For the purpose of acquiring necessary right-of-ways, every such corporation, association or person is hereby granted the right of condemnation by eminent domain, and the use of the highways in this state, for the purpose of transporting petroleum by pipe lines, and the location, laying, constructing, maintaining and operations thereof. (483.2)

What is striking here, of course, is that when it comes to the right of condemnation, the statute does NOT say “crude oil or petroleum.” Conspicuously, it now only says “petroleum.” Why? A reasonable inference, of course (and I think this is Wendy Turner’s point) is that this shows that the legislature in 1929 considers crude oil and petroleum to be different things. When it means both, it says both; when it means only one of them, it says only one of them.

That’s a pretty interesting argument, in my view, and not a bad explanation for the conspicuous omission of “crude oil” from the condemnation section of the Act. But I’m not sure it makes a strong enough case. A much stronger “intentionalist” argument would need to look outside the language of the statute in order to establish legislative intent (that’s why, as I said, intentionalism tends to deal in historical questions, unlike textualism, which deals mainly with semantic questions). That is, the intentionalist might attempt to show– by producing whatever historical information she can find– how a distinction between crude oil and petroleum was very common in the 1920s (I have no idea whether that’s true; it would certainly be interesting to find out!). Or, she might look for examples– other writings, speeches, letters– of where the authors or supporters of the Act distinguished between crude oil and petroleum. Those examples would go a long way in helping to establish legislative intent.

Incidentally, if you’d like to see a very clear example of how these two theories of legal interpretation– the textualist and the intentionalist– have sometimes clashed in actual practice, you need look no further than the case that has been cited a lot in Line 6B filings: the Wolverine case (we’ve discussed it here). There, the majority based its reading of the law on (as they say) the “plain language” of the law– in fact, they spend a fair amount of time talking about Webster’s dictionary. That’s because they adhere to the textualist theory. The dissent, by contrast, based its argument on “the Legislature’s intent”– and so they spend some a fair amount of time looking into Michigan “legislative history.” That’s because they adhere to the intentionalist theory.

Of course, the two theories don’t always have to be at odds. In fact, it may be possible in the case of the Crude Oil and Petroleum Act, to make both a textualist and an intentionalist case for a distinction between crude oil and petroleum– and that might be a pretty strong case. But if it’s going to be made, somebody’s going to have to supplement the semantic hairsplitting with some historical research. That, I’d love to see.