The Nickel Report

Ho Ho Ho! Happy Hanukkah! Happy New Year!
And so it goes this time of year,
with family and friends gathering for the holidays
to share a hot toddy and some good cheer!

As October and November gently glide by,
Heading into December for cookies and pie,
But lo, the environmental lawyer sits
wearily writing at the computer, throwing fits.

What will the court or the EPA say
Will be due around Christmas, Hanukkah, Kwanzaa or New Year’s Day?

Ah… there’s a D.C. Circuit brief due December 22^nd
And comments the 28th that beckon!
So parties that are fun are not to be had
Rather, parties that are litigants or co-commenters, egad!

Every year, around October and November, I wait to see which deadlines will hit right around the holidays. How can I make sure we are prepared? Can we get client review? Can we avoid that rush, for the clients’ sake and our own? Memories flood back of writing a brief in the wee hours of Christmas Eve on my sister’s bathroom floor–for fear of waking up the house by turning on a light, as the kids are camped out in her living room in sleeping bags. (Also, being in the bathroom would ensure I would not run into St. Nick as he came down the chimney.) Oftentimes, our team has worked on comments to file between Christmas and New Year’s Day. This year holds true to form with two briefs due December 22, 2017, and comment deadlines just after Christmas.

You may think, “Well I understand about a brief, since that’s hard work! But what’s the big deal about filing comments?” Rulemaking comments can actually be far more work than a brief and are critical to long-term success for a client. Under the Administrative Procedure Act and substantive statutes, like the Clean Air Act, in order to preserve your client’s right to appeal an issue to the courts, it generally must have been properly raised during the public comment period or it been impracticable to do so. Otherwise, there’s a risk that the appeal could be dismissed. The purpose of this requirement is to allow the agencies the opportunity to address an issue and to create a proper record for the court to review it. It’s the lawyer’s job to make sure that the key legal arguments are raised and the client’s job to help us with the factual underpinnings for those legal arguments. For this reason and many others, there’s a lot at stake in preparing comments on a major regulation. Significant proposed regulations routinely fill 20 to 100 pages of the Federal Register and for each and every Federal Register page, 10 or more pages of support documents may exist in the docket that require review and analysis. Rulemaking comments are not for the faint of heart!

Back in the old days of course, before email and e-filing, people just got this stuff done early so that documents could be mailed, overnighted, or hand-delivered in time—which typically meant, at the latest, 3:00 pm to be sure you beat agency close of business. But human nature tends to dictate working up to the very last minute. Today we have the ability to file up until 11:59 pm with the push of a button! Poor us? Not really. The fact is that we love this work. It’s exciting to develop great arguments and create a successful outcome for clients. Odd hours come with the territory. Indeed, this is the law firm’s form of “hazard duty,” and I add that it is a light and happy load compared to what many others bear outside our profession.

We serve with humility the clients who give us an opportunity to make a difference. In this season of kindness, goodwill, and gratitude, we honor those serving country and community, who make the world a better place. We wish everyone a happy, joyful, and restful holiday season and look forward to seeing you in 2018!