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"Daily" Means Daily:

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.

SLS 1L:
One more opportunity to point out that a dictionary is not a very good guide to what a bit of language "really" means. Ask any linguist.
5.8.2006 8:27pm
The Renown Don Descartes (mail):
Daily denotes daily. "Daily" denotes the literal spelling or it connotes a qualified, ironic meaning.
5.8.2006 8:48pm
OC:
I don't think it is some conspiracy by the EPA. See the following Third Circuit opinion (starting page 26 of the PDF), which also deals with the confusion in the Clean Water Act regarding "daily" versus "monthly" violations. Judge Becker found the statute so confusing that he asked the clerk to send a copy of the opinion to Congress to tell them to fix the statute.

Link
5.8.2006 8:51pm
CEB:
SLS 1L,
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.
5.8.2006 8:51pm
CEB:
..or maybe a very easy task.
5.8.2006 8:55pm
CEB:
The Renown Don Descartes,

Is what a bit of language "really" means different from what a bit of language really means?
5.8.2006 8:58pm
SLS 1L:
CEB: saying "dictionaries are not a good way to find out what a word actually means when used by native users" is not the same as "all meanings are equally good." Dictionaries miss a lot of nuance, connotation, secondary uses, and so forth. This is why people who study language professionally don't like them.

Dictionaries have their place in statutory interpretation, but lawyers and judges tend to treat them as more authoratitive than they should.
5.8.2006 9:03pm
The Renown Don Descartes (mail):
"Yes".
5.8.2006 9:16pm
Beerslurpy (mail) (www):
Hey just a silly question by a non lawyer. How come administrative law doesnt violate separation of powers? It seems plainly obvious that most of these agencies occupy both judicial and legislative territory through the creation of quasi-statuatory regulations and the use of hearings to essentially hold mini-trials. Congress seems to intentionally delegate ridiculously broad power to these agencies by passing vague laws that demand interpretation. For example "sporting purposes" or "readily convertible to a machine gun." Let's not forget the FDA or the EPA as well.

Is this another one of those wondrous gifts given to us by the New Deal?
5.8.2006 9:26pm
Dave Hardy (mail) (www):
Hey just a silly question by a non lawyer. How come administrative law doesnt violate separation of powers? It seems plainly obvious that most of these agencies occupy both judicial and legislative territory through the creation of quasi-statuatory regulations and the use of hearings to essentially hold mini-trials. ....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...
5.8.2006 9:55pm
Esquire:
While it is disturbingly deconstructionist to actually question whether daily means daily -- in fairness to the EPA, libertarians would note that the phrase "Congress shall make NO law..." has mysteriously become "Congress shall make only those laws comporting with various multi-tiered balacing tests (i.e. strict scrutiny, compelling interests) to be determined by judicial policy priorities..."
5.8.2006 10:10pm
Michelle Dulak Thomson (mail):
Without claiming to know squat about the particular situation here, I don't think it's especially odd that the EPA should take "daily" to mean "per day, on average," and decide to average on different timescales depending on the pollutant. It's not what the statute says, of course, but it's what any self-respecting bureaucrat would take it to say, and probably what it ought to have said. (Do we really want to be checking effluent from tens of thousands of sources for hundreds of possible contaminants daily rather than weekly, or at random?) That doesn't mean it shouldn't be enforced exactly as written; if judges did this more often, we'd have many fewer stupid laws.
5.8.2006 10:24pm
Chuck C (mail):
Well, "shall make no law" is now "can make some laws"; "shall not be infringed" is now "may be infringed"; "public use" is now "public purpose"; So, why can't "daily" be "weekly", "monthly", or "hourly"?
5.8.2006 10:24pm
therut:
The problem is with the Judges generally. When they feel like it they read a statue as literally as possible. When they want to legislate they themselves make things up. Bad system all the way around. The citizen is the ones who lose.
5.8.2006 10:26pm
wm13:
It seems kind of strange that a group of unelected federal judges would criticize a group of unelected federal administrators for (i) adopting a tortured reading of a statute rather than revisiting an earlier interpretation and (ii) construing a statute to reach a result desired for policy reasons. But I guess it's always easier to see the planks in others' eyes.
5.8.2006 10:58pm
blackdoggerel (mail):
I see that Judges Brown and Griffith signed on to Judge Tatel's opinion shooting down the EPA without concurrence or dissent. Looks like those predictions by their congressional opposition that they were chomping at the bit to dismantle the regulatory state and sign on to the Bush agenda were, as usual, spot on.
5.8.2006 11:11pm
Cornellian (mail):
It seems kind of strange that a group of unelected federal judges would criticize a group of unelected federal administrators for (i) adopting a tortured reading of a statute rather than revisiting an earlier interpretation and (ii) construing a statute to reach a result desired for policy reasons. But I guess it's always easier to see the planks in others' eyes.

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.
5.8.2006 11:26pm
Beerslurpy (mail) (www):
Ooh I didnt even see the concurrences. I wondered what JR Brown was up to.


Ah, you noticed!


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.
5.9.2006 12:05am
James Lindgren (mail):
I see why the EPA has to set daily limits (rather than seasonal limits), but I don't see why it has to be the same rate every day.

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.
5.9.2006 12:06am
logicnazi (mail) (www):
In response to this entire bit about "congress shall make no law" I think these complaints overlook basic differences between constitutional and legislative interpretation. Now sure our founders could have chosen to write a constitution that spells out in detail exactly what they meant by every provision in the same level of excruciating detail that congress does in its laws. Indeed many country's constitutions do exactly this but our founders choose to write in general terms with the understanding that these clauses would be interpreted (not necessarily by judges) in a reasonable fashion.

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.
5.9.2006 12:08am
Beerslurpy (mail) (www):

I don't see why it has to be the same rate every day.


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?
5.9.2006 12:36am
James Lindgren (mail):
Beerslurpy,

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.
5.9.2006 1:40am
breen (mail):
I believe Lindgren is saying that the EPA could find a historical trend and set the daily limits to these trends, assuming there are explainable seasonal variations. In other words, Lindgren assumes that the pollutant levels don't follow some completely "arbitrary" schedule. Knowing nothing about pollutant levels, I would imagine one can crudely predict these numbers. Am I wrong?
5.9.2006 1:46am
John Jenkins (mail):
logicnazi, I think you're making it too difficult for yourself. The language is "Congress shall make no law abridging . . ." The question is about what is abridgement, not whether Congress can do so. Your more general point that it's inapt to compare that with interpretation of a commonly understood word like daily is well taken, however.

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 see that Judges Brown and Griffith signed on to Judge Tatel's opinion shooting down the EPA without concurrence or dissent. Looks like those predictions by their congressional opposition that they were chomping at the bit to dismantle the regulatory state and sign on to the Bush agenda were, as usual, spot on.
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.
5.9.2006 1:47am
breen (mail):
It is one of the small pleasures of modern life that you can answer for someone and be vindicated before you verbalize (post) your thoughts. It also sucks.
5.9.2006 1:49am
DustyR (mail) (www):
The Court is right. Congress is wrong. The EPA is stuck in the middle. It wouldn't the first time.

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.
5.9.2006 2:22am
logicnazi (mail) (www):
John Jenkins,

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.
5.9.2006 5:05am
WB:
To answer Prof. Adler's question, I think that this would be an interesting subject for further study, but I'd be very skeptical of empirical research that purports to measure EPA's "stretching" of statutory language. Perhaps it's clear in this case that their construction was a stretch, but I imagine that most of the instances would be situations in which one person's "stretch" is another person's example of an agency administering its statute within a permissible range of ambiguity.

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.
5.9.2006 10:16am
KevinM:
Where's fictional Clarence Darrow when you need him?

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"
5.9.2006 11:22am
I.I (www):
You're all missing the very important "suitable" option that was mentioned in the article. For those pollutants which ought to have seasonably-variable limits, all the EPA has to do is declare them not suitable for fixed daily limits. The agency can accomplish exactly the same functionality that it has now while also staying within the plain meaning of the law; they simply didn't feel that it was important to stay within the plain meaning of the law.

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.
5.9.2006 11:47am
Jonathan Adler (mail) (www):
WB

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
5.9.2006 1:26pm
ReaderY:
"Daily" may well be bad policy, perhaps very bad policy, but that doesn't make the term unclear.
5.9.2006 2:35pm
Carl C. Christensen (mail):
Jonathan Adler has stated: "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."

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.
5.9.2006 4:20pm