The Nickel Report

Recently, several of the environmental attorneys in our Washington office gathered together to sign holiday cards. During the festivities, the song “Hard Candy Christmas” by Dolly Parton played, leading to a spirited discussion of what did the words “a hard candy Christmas” mean? Was this type of Christmas good or bad? Was this song happy or sad?

Believe it or not, these types of spirited discussions are commonplace among my colleagues and myself and are indicative of environmental law. Words form the foundation of all environmental laws, including federal statutes like the Clean Air Act, state laws such as California’s Proposition 65, or regulations in small towns to control stormwater. Litigation involving environmental regulation frequently revolves around the meaning of the words in the law at issue. What did Congress, the state legislature, or the Town Council mean when they said those words?

For example, the Supreme Court examined the meaning of section 110(a)(2)(D)(i) of the Clean Air Act in EPA v. EME Homer City Generation, L.P., where the Court grappled with what Congress meant when it prohibited sources “from emitting any air pollutant in amounts which will . . . contribute significantly” to nonattainment in a downwind state or interfere with the downwind state’s ability to maintain a national ambient air quality standard. That case, which involved EPA’s Cross-State Air Pollution Rule, was the third time that phrase and its meaning was the focus of a court’s decision since 2000. (The other two cases involved EPA’s NOx SIP Call and Clean Air Interstate Rule.) Similarly, Massachusetts v. EPA, the landmark 2007 Supreme Court case that allowed EPA to regulate greenhouse gases under the Clean Air Act under certain circumstances revolved around the definition of “air pollutant” and what those words encompassed.

Much of the battle over EPA’s controversial Clean Power Plan surrounds whether requiring a shift to natural gas and renewable forms of energy from coal meets the Clean Air Act’s definition of “standard of performance,” which requires “application of the best system of emission reduction.” Is shifting to alternative forms of generation a “system of emission reduction”? Is that what Congress intended? And EPA’s similarly controversial Clean Water Rule is a rule intended to clarify what the phrase “Waters of the United States” means in the Clean Water Act.

Words can be read different ways by different people. And words can be twisted to meet a preconceived agenda. While it would be wonderful if the meaning of environmental laws and regulations was crystal clear, this is rarely the case. The lesson for us is to be careful not to jump to conclusions about what may seem to be a clear meaning, to check with federal, state, and local regulators to be sure you know how they read the law, and to urge lawmakers to use the clearest and simplest language possible to avoid these types of problems in the future.

As for the song “Hard Candy Christmas,” I think the message of the song is hopeful. Dolly says she’ll “be just fine and dandy” and “won’t let sorrow bring [her] way down.” So while everything may not be ideal and without problems, she’s going to make the best of it.

May your holiday season be fine and dandy, and may your 2017 be one full of hope.