One of the most insidious forms of Woo is to strip words of their actual meaning and reinterpret them anew. Games are played with laws to twist their purpose and intent. Does anyone even know what "torture" means anymore? The hoi polloi may not have PhDs, but they do know what the definition of "is" is and they can smell a skunk from miles away. For the past seven years, the smell of skunk has been coming from the EPA.
In 2006, the DC US Court of Appeals had to define the word "any" for the EPA. When a law says that any physical change to a static emission source (factories, power plants, etc.) which results in increased emissions [the so-called Equipment Replacement Provision (ERP) in the Clean Air Act (CAA)] will be required to undergo a permitting process, what do you think they meant? Lawyers for the EPA argued that the term physical change is ambiguous. What does that even mean? Changing equipment? Changing the number of people working at a factory? A change in the mental capacity of managers? According to the lawyers, if physical change is ambiguous then any physical change is exponentially more ambiguous. Therefore, Congress didn't really mean any physical change and so plants are free to make changes that increase emissions without being subject to the rigorous permitting process. QED.
Smell that skunk yet? Overpowering, isn't it? The Court of Appeals spent a lot of time giving the EPA a lesson on what the word any means and how Congress did indeed mean what they said. One clue can be found in the name of the law - the Clean Air Act. Clean. Air. Make the air cleaner.
According to the court,
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. We decline to adopt such a world-view.(ref - pdf warn)When a court departs from its stolid machinations and references Lewis Carroll against the lawyers for the EPA, then I think we can safely say the lawyers were on the receiving end of a smack down.
Here's another example of EPA lawyerly word games in which the lawyers were schooled in the definition of "daily". When Congress imposes requirements on the daily amount of pollution allowed to enter water sources, they couldn't have really meant daily daily, could they? It's not like The Daily Show comes on every day, does it? What about the weekends?
What's unusual under Bush, several legal experts said, is not just a high percentage of court losses. It's also that so many judges have scolded the administration over its legal tactics and what they said was disregard for the law and science.
In one case, judges on a panel of the U.S. Court of Appeals for the District of Columbia Circuit quoted the Lord's Prayer in underscoring the "absurdity" of the EPA's interpretation of the word "daily." Lawyers for the agency had argued that Congress did not literally mean "daily" in establishing a cap on "total maximum daily loads" of pollutants flowing into rivers.
"The law says `daily,'" wrote Judge David S. Tatel in the court's 2006 opinion rejecting the EPA's policy of requiring only annual or seasonal pollution caps in the Anacosta River. "We see nothing ambiguous about this command. `Daily' connotes `every day.' ... No one thinks of `give us this day our daily bread' as a prayer for sustenance on a seasonal or annual basis." (ref)
Who needs a dictionary when you have courts to do the work of looking up words for you. And by the way, using the Lord's prayer in refuting a Christian conservative administration's legal tactics? That's called irony.
Clean Air Act
State of New York, et al. v. Environmental Protection Agency (pdf)
High Court Won't Review D.C. Circuit Clean Air Act Ruling
Bush Team Battered by Courts on Environment