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Court Castigation

Fairy Tales And Judicial Opinions

by Cheryl Hogue
May 5, 2008 | A version of this story appeared in Volume 86, Issue 18

Credit: CartoonStock
Credit: CartoonStock

Decisions by federal appeals courts are thick with detailed analyses, often making for laborious reading. References to fairy tales don't usually pop up amid the judicial gravitas and legal citations.

But in two recent decisions overturning controversial Clean Air Act regulations, a federal appeals court conjured up fantastical characters from Lewis Carroll's Alice in Wonderland books. In each case, the U.S. Court of Appeals for the District of Columbia Circuit chastised the Bush Administration's arguments by comparing them to one of Carroll's fictional irrationalists.

Earlier this year, when it knocked down EPA's controversial regulation that controlled mercury from coal-fired power plants, the court cited the Queen of Hearts from "Alice's Adventures in Wonderland." Carroll's ill-tempered queen settled issues large and small by commanding, "Off with her head!" and "Off with his head!"

At issue was EPA's rule that set a nationwide cap on mercury emissions from coal-fired power plants, then let these facilities buy and sell allowances to release mercury pollution. Electricity generators that cleaned up their mercury emissions could sell their excess allowances to dirtier facilities, thereby potentially creating mercury hot spots.

To pave the way for the cap-and-trade rule, EPA removed utilities from a list of pollution sources whose mercury emissions must be tightly controlled. The agency explained it simply had reversed a decision by the Clinton Administration to put power plants on the list.

The appeals court determined this move by the agency was unlawful because EPA failed to follow the procedures spelled out in the Clean Air Act for taking polluting industries off the list. The agency's argument for delisting power plants, the court said, "deploys the logic of the Queen of Hearts, substituting EPA's desires for the plain text" of the Clean Air Act.

This marked the second time the appeals court drew from a Carroll tale to scold EPA for writing a regulation contrary to the Clean Air Act.

The first time came in a 2006 opinion on a case that turned on what the word "any" means. The controversy stemmed from a Clean Air Act provision requiring older facilities to install modern pollution controls if they undergo "any physical change" that results in emissions increases.

A Bush Administration EPA rule made it easier for chemical companies, refineries, and power plants to upgrade or expand older facilities without installing new air pollution equipment. The regulation allowed companies to modify these plants—and increase pollution—without adding emission controls under one condition: If the cost of the changes was less than 20% of the replacement value of the entire industrial unit, then the plant owner would not have to install new equipment.

The appeals court faulted EPA's interpretation of the word "any," which Congress inserted in front of the phrase "physical change." The court turned to "Through the Looking-Glass," in which protagonist Alice is puzzled by Humpty Dumpty's illogical statements. Humpty Dumpty explains that whenever he uses a word, "it means just what I choose it to mean," regardless of its accepted definition.

"EPA's position is that the word 'any' does not affect the expansiveness of the phrase 'physical change,' " the court wrote in overturning the rule. "It only means that, once the agency defines 'change' as broadly or as narrowly as it deems appropriate, everything in the agency-defined category is subject" to requirements for air pollution controls.

The agency's approach would seemingly require Congress to modify the term "physical change," the court said, with "a phrase such as 'regardless of size, cost, frequency, effect,' or other distinguishing characteristic. Only in a Humpty Dumpty world would Congress be required to use superfluous words while an agency could ignore an expansive word that Congress did use."

The court pointed out that it remains firmly grounded in reality and not fantasy, adding, "We decline to adopt such a world view."

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