The Clean Water Act (CWA) requires states to set caps, known as “TMDLs,” for the amount of certain pollutants that may be discharged into polluted waters. Under the (CWA), TMDLs must be set at the level “necessary” to meet relevant water quality standards. For years, the U.S. Environmental Protection Agency has maintained that TMDLs need not establish daily discharge limits, even though TMDL stands for “total maximum daily load” (emphasis added). For some pollutants, the EPA approved TMDLs that set annual or seasonal, rather than daily, limits. When the EPA approved such limits for the discharge of pollutants into the Anacostia River, one of the most polluted rivers in the nation, Friends of the Earth sued.The EPA claimed that setting annual or seasonal discharge limits makes more sense in some contexts, such as storm water. Perhaps this is so, but that does not make it legal.
In a recent opinion, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit resoundingly rejected the EPA’s suggestion that “the word ‘daily,’ as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily.” As Judge David Tatel explained in his opinion for the panel in Friends of the Earth v. EPA:
The law says “daily.” We see nothing ambiguous about this command. “Daily” connotes “every day.” See Webster’s Third New International Dictionary 570 (1993) (defining “daily” to mean “occurring or being made, done, or acted upon every day”). Doctors making daily rounds would be of little use to their patients if they appeared seasonally or annually. And no one thinks of “[g]ive us this day our daily bread” as a prayer for sustenance on a seasonal or annual basis. Matthew 6:11 (King James).As the Washington Post editorialized, this "strong, derisivie language" was a "message to the agency to take congressional enactments seriously, as written, not as the agency wishes Congress had written them."
Were it not bad enough that the EPA sought to ignore the plain language of the statute, the agency failed to take advantage of a potential out the statute provides. The CWA only mandates the setting of TMDLs for those pollutants deemed “suitable” by the EPA. In 1978, the EPA determined that “all pollutants” were “suitable” for daily limits, but there is no reason that the EPA could not revisit this conclusion. Thus, Judge Tatel wrote, the court was "at a loss as to why [the EPA] neglected this straightforward regulatory fix in favor of the tortured argument that ‘daily’ means something other than daily."
This was not the first time the EPA has tried this argument in court, however. In 2001, the EPA convinced a panel of the U.S. Court of Appeals for the Second Circuit, in NRDC v. Muszynski, that “the CWA does not require that all TMDLs be expressed strictly in terms of daily loads” because this could produce “absurd” results for some pollutants. Thus, the D.C. Circuit’s opinion creates a circuit split on the question. (I have not yet heard whether the EPA intends to file for certiorari.)
This was also not the first time that the EPA had sought to ignore “a statute’s plain language simply because the agency thinks it leads to undesirable consequences” (and I doubt it will be the last). In the 2002 case of Sierra Club v. EPA, for example, the D.C. Circuit took the EPA to task for the same offense, this time in the context of Clean Air Act implementation. In both cases, the EPA sought to implement a “reasonable” policy choice at odds with statutory text. In both cases, the beneficiary of the EPA’s flexible interpretive approach was the District of Columbia. Is it overly cynical of me to think this is not wholly coincidental? One would expect regulators to be more sensitive to the practical consequences of regulatory decisions about which they will bear the costs and reap the rewards. Therefore, would it be surprising were the EPA more aggressive in its efforts to stretch statutory text to avoid “unreasonable” results where such efforts will have their greatest effect in the agency’s own backyard? I am curious as to what readers think about this subject, and whether this question is worth further empirical examination.
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So by your Humpty-Dumpty logic, the EPA's definition of "daily"--meaning say, once every three months--is as legit as the dictionary definition. I'm glad that sort of thinking is largely confined to the academy, otherwise statutory interpretation would be a very daunting task.
Is what a bit of language "really" means different from what a bit of language really means?
Dictionaries have their place in statutory interpretation, but lawyers and judges tend to treat them as more authoratitive than they should.
Is this another one of those wondrous gifts given to us by the New Deal?
Ah, you noticed! The power to legislate (within broad parameters -- "do something to protect this" -- to adjudicate (with limits, since the decisions are reviewable in court ... but usually presumed correct) and to enforce. It's a wonderful thing to be king....
DTH
Former GS-14
who occasionally wound up reviewing his own decisions...
But apparently, it is not so easy to point out that administrative policy isn't bound by stare decisis and that statutes often vest broad discretion in agencies to formulate and consider desirable policy goals in deciding how to interpret and enforce a statute.
Arent you the guy that blogs with Dave Kopel on that Guns and Law blog? I'm a fan of you guys.
I'm genuinely curious about where this administrative law concept derives its legitimacy from. It isnt a common law construct and I wouldnt imagine it arises from the constitution, which clearly delegated typical agency powers to other branches.
I can have a daily exercise program and do different routines for different times on different days. Daily prayer could be longer on Sundays.
Daily EPA limits could be different in different seasons; rationality should be the test.
This is just a standard feature of how we interpret language. If I say "all ravens are black" a reasonable person would not take me to be denying the existence of mutant albino ravens or my ability to take white paint and slap it on a raven. Similarly when the founders say congress shall make no law they clearly don't mean to prevent outlawing of death threats or yelling fire in a crowded theater. Quite simply when people make short universal statements we naturally interpret them to be making reasonably generalizations that don't include absurd consequences. The problem is figuring out where to draw this line.
On the other hand if I was to tell you, "All ravens sufficiently clean and unpainted are black except those with genetic mutations x, y,z..." and list a bunch of other specific conditions then it would be perfectly reasonable for you to interpret me as intending to make a truly exceptionless statement not just a genericly true statement. Thus when a judge interprets congress who usually writes very clearly and precisely (well at least they try) it would undermine the intent of congress not to interpret those words much more literally than we interpret the general statements of principle in the constitution.
As for the DC being in their backyards hypothesis I think another possibility is that it is just more of a political hot potato or that the absence of state governments makes some different. What I really want to know is what the effect of these decisions in DC was. If they really would be something a DC resident would be positively inclined towards your thesis would be reasonable otherwise we would need to look for another explanation.
Because if it varies arbitrarily from day to day it isnt a limit, and if it is a limit over x period of time where x is not a day, then it isnt daily.
Are you arguing that the limit should be announced daily in the federal register or something?
It might be 20 units per day of some pollutant from June through February in some region, and 40 units per day of that pollutant from March through May, when the Spring runoff is higher.
That's a daily limit; every day has a limit.
I play at golf courses or use parks which are open every day, just different hours when the sun is up more hours, just as you might have different pollutant rates when nature is different.
Administrative Law: Congress creates the agencies and delegates some of Congress's authority to them to effectuate the nuts and bolts of the statutory schemes because Congress is too busy finding clever new ways to waste money to figure out what's important (and when they try, they often get it wrong: at least some of the SEC regs and TR regs absolutely reverse the statutory language because the statutory language just doesn't make sense).
Administrative law courts are permitted because DP only requires process, but doesn't tell you what process is required. See Mathews v. Eldridge. Except for cases squarely within the jurisdiction of the Supreme Court, Congress has the authority to vest jurisdiction where it chooses. U.S. Const., Art. III, § 1. I can't think of any time where an administrative agency (or adjudication) is the final say. The courts always get a bite at it, even if only as an appeal. The immigration context is the one that I think is least favorable, because Congress has severely limited appellate relief. See INA § 505.
I assume that's sarcasm, given that what's actually being done is telling the agency that it's free to do what it wants to do, just not the way it tried to do it.
Personally, I think the EPA should apply the strict language. Then when the trillion dollar bailout request for municipalities is sent to Congress, they can change the language of the law. (Then again, maybe the millions of frequently flooded basements, will preclude that request.) In either event, it's not good to dabble in environmental engineering teminology when you're a Congressional Idiot.
As for the WaPo, it's too bad THEY don't take congressional enactments seriously when it comes to national security.
You are probably right to say that this is a question about what is 'abridgement'. I think the more general quesiton though was why should we insist on the literal meaning of statute but be more lenient with constitutional interpratation. What I was trying to point out is just that if someone is very specific in their directions it is correct to infer they intend you to follow those directions more exactingly than if they just gave a vague general statement.
If this is what you meant when you said I was probably right then sorry for repeating it.
What I never understood was how the courts read in limits on the power of congress to delegate the power to create regulation (EPA rules etc..). Clearly they do read in some limit otherwise the line item veto would be constitutional (congress just creates some body which has the power to promulgate a regulation on any item but only if it is a bill passed by congress minus parts struck out by the president). So the answer surely is not as simple as you suggest it is but this is a bit off topic and something I've been meaning to look up but never got around to doing.
To put it another way, I'd be wary of doing something that might read along the lines of "this study measures the frequency with which EPA makes blatantly disingenuous arguments in court."
If you can filter the subjectivity out of it, it looks like an interesting subject.
Drummond: Do you ever think about things that you do thing about?! Isn't it possible that it could have been 25 hours? There's no way to measure it; no way to tell. Could it have been 25 hours?!
Brady: It's possible.
Drummond: Then you interpret that the first day as recorded in the Book of Genesis could've been a day of indeterminate length.
Brady: I mean to state that it is not necessarily a 24 hour day.
Drummond: It could've been 30 hours, could've been a week, could've been a month, could've been a year, could've been a hundred years, or it could've been 10 million years!!
"Inherit the Wind"
With regard to constitutional versus legislative language: "Similarly when the founders say congress shall make no law they clearly don't mean to prevent outlawing of death threats or yelling fire in a crowded theater." There's absolutely no reason why Congress should get involved in either of those situations: death threats are a matter for local law enforcement, and panicking a theater can easily be handled as a common-law trespass/tort against the theater owner and/or patrons.
"Congress shall make no law" means "Congress shall make no law", period. Even the atrocious privileges-and-immunities clause in the 14th amendment doesn't cause any problems here, because "Congress shall make no law" doesn't explicitly define a privilege or immunity, but merely a limitation on Congress.
Just to clarify, what I am suggesting is an empirical examination of whether the EPA acts in a demonstrably different fashion when making regulatory decisions that have their primary, or at least a significant, effect on the metropolitan D.C. area. While there might not be enough data points for a rigorous study, I would be curious whether the EPA has been more prone to adopt statutory interpretations that are subsequently struck down in federal court when Washington would bear the costs of a more rigid application of the relevant statute. This sort of claim has been made before. For instance, some Western politicians have complained that the Endangered Species Act is enforced more stringently in the West and in rural areas than in the Northeast, but I know of no empirical work supporting the claim.
JHA
Even if the financial costs of strict regulation fall on the District of Columbia and its residents, it is not at all clear that most EPA employees would share in those costs. If they work in DC but live in Virginia or Maryland, they pay no income tax to the District and thus bear little of the cost. But they DO benefit from a clean Anacostia, so on this theory they should be willing to OVER-regulate the District, not bend over backwards to let it off the hook.