July 17, 2015

More linguistic alchemy from EPA

By More linguistic alchemy from EPA

EPADictionaries are apparently no match for EPA’s seemingly insatiable appetite for regulatory power. As we’ve noted, EPA has gone from exploiting ambiguous words to redefining words in a way that defies their common meaning. Only in EPA’s warped world does “navigable” include unnavigable, “surface water” include ground water, and “continuous flow” include occasional flow.

Last week’s opinion by the Third Circuit in American Farm Bureau Federation v. EPA provides yet another example. This case involved EPA’s authority to promulgate a “total maximum daily load” for certain pollutants under the Clean Water Act. Turning the English language on its head, EPA insists that “daily” includes other timeframes such as “annual” or “seasonal.” The Second Circuit has accepted this definition, allowing EPA to make regulatory gold out of an absurd textual argument. Only the D.C. Circuit is willing to call a spade a spade:

Daily means daily, nothing else. . . Nothing in this language even hints at the possibility that EPA can approve total maximum “seasonal” or “annual” loads. 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.

More courts should follow the D.C. Circuit’s lead to prevent EPA from using the text of the Clean Water Act as a philosopher’s stone to create boundless power out of a limited grant of regulatory jurisdiction.

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