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Friday, March 30, 2007

Column: Too Darn Hot

Contrary to popular belief, the epic battle over global warming that recently took place in the US Supreme Court was not primarily about shrinking ice caps, rising sea levels, or other kindred inconvenient truths.

It was a battle about words. To be exact, the words “air pollutant.”

In Massachusetts v. Environmental Protection Agency, the Bay State sought to force the EPA to regulate greenhouse gases, such as carbon dioxide, as “air pollutants” under federal law. That may sound straightforward enough – if something causes global warming, isn’t it a pollutant? – but when it comes to environmental law, words are rarely simple.

In the language of environmental law, everyday smog is known as the coefficient of haze. Federal and state authorities never drain a swamp; they dewater it. And in the realm of clean air, regulators like to cite the odor threshold; that is, the point at which a substance in the air can be smelled.

Massachusetts v. EPA involved the Clean Air Act, which empowers the EPA to regulate any “air pollutant.” The Act defines air pollutant as:

any air pollution agent . . . including any physical, chemical . . . substance or matter which is emitted into . . . the ambient air.

In their efforts to slice and dice these words, the parties ended up giving all of us a textbook lesson in the canons of construction; that is, the established rules for interpreting statutes (canon is an Old English word referring to a rule, particularly one laid down by a church – hence canon law is the name for the body of ecclesiastical law).

The Grand Canon

The most basic canon is the Plain Meaning Rule: words in a statute should, if possible, be given their “plain” or “literal” meaning. On that score, Massachusetts argued in its brief that the word “any” in the above definition (as in “any physical, chemical . . . substance”) is an expansive word that both “bespeaks breadth” and “signals breadth.” Presumably, they mean a breadth of clean air.

But how broad is “any”? It’s not the same thing as “every”; there’s a big difference between “is anyone there?” and “is everyone there?” The word “any” can be used expansively, but that is not its only “plain” interpretation. Dictionaries, unfortunately, are of little use on such questions. Black’s Law Dictionary, for example, offers the distinctly unhelpful definition of “any” as “some; one out of many; an indefinite number” – thus managing to leave the reader more confused than when he started.

Stroud’s Judicial Dictionary says that “ ‘any’ is a word which excludes limitation or qualification . . . [b]ut its generality may be restricted by the subject matter or the context.” In other words, “any” is expansive, except when it isn’t.

Include Me In

Not very conclusive – but then, the battle was just getting started. Massachusetts went on to focus on the word “including,” arguing that since an “air pollutant” is said to “include” any chemical or physical substance emitted into the air, then it must include carbon dioxide. After all, you and I emit carbon dioxide into the air every time we breath. Although Massachusetts did not use this term in its brief, it could be said to be invoking the canon of noscitur a sociis (Latin for “known from associates”); essentially, that the meaning of a statutory term must be ascertained by the surrounding words.

The EPA countered that the word “including” is limited by the term “air pollution agent,” which immediately precedes it. On this reading, an air pollutant is not just any chemical or physical substance emitted into the ambient air, but only one that also qualifies as an “air pollution agent.” Massachusetts, not surprisingly, argued that “including” and the words following it, expand the meaning of “air pollution agent” and not the other way around.

And so the battle turned from the meaning of “air pollutant” to that of “air pollution agent.” Unfortunately – and a little strangely – the Clean Air Act does not define “air pollution agent” or even “air pollution.” According to Massachusetts, the statute’s purpose of protecting “public health and welfare” demonstrates that greenhouse gases should be considered “air pollution agents.” Another example of noscitur a sociis.

In his dissenting opinion, which supported the EPA’s position, Justice Scalia turned to the dictionary definition of “pollute” as “to make or render impure or unclean.” This is true enough, pollution ultimately derives from the Latin lutum, or mud. Even today, scientists refer to certain kinds of clay as “lute.” In any event, Scalia’s argument was that carbon dioxide cannot be an agent of “air pollution” because, rather than being an impurity, it is a natural component of our atmosphere.

One can go back and forth like this forever – or at least until the sea level reaches your lower lip. That’s the thing about the plain meaning of statutes: plainness is in the eye of the beholder. A good example of this is the 1931 Supreme Court case of McBoyle v. United States, in which McBoyle had been convicted under the National Motor Vehicle Theft Act for transporting a stolen airplane across state lines. The case hinged on whether an airplane was a “motor vehicle.” The government pointed to the statute which defined “motor vehicle” as including cars, trucks “or any other self-propelled vehicle not designed for running on rails.” Literally, that would seem to include aircraft, but the Justices saw things differently. Speaking for a unanimous court, Oliver Wendell Holmes said “in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” There’s literal, and then there’s literal.

When the plain or literal meaning of a statute is not conclusive, courts may look to other canons of construction, like the noscitur a sociis rule we’ve already seen. In the Massachusetts case, the EPA (and other respondents) fired off a number of canons in their attempt to bring the court around to their interpretation.

Theater of the Absurd

First, the agency pointed to the “fundamental canon of statutory construction that the words of a statute must be read . . . with a view to their place in the overall statutory scheme.” For those who prefer Latin, this rule is traditionally known as in pari materia or “upon the same subject”. Using this canon, the EPA pointed out that other federal laws already address global climate change and, therefore, it would be redundant (another statutory no-no) to interpret the Clean Air Act as covering the same ground. Or air, for that matter.

Secondly, a number of States argued in a separate brief that Massachusetts’ interpretation of the Clean Air Act would violate the Absurd Results Canon. This one is sort of a meta-canon; it says that no matter how many other canons support a particular interpretation of a statute, a court should not adopt that interpretation if it leads to absurd results. The States argued the Clean Air Act targets domestic pollution, and that it would be “absurd” to include greenhouse gases, which are an international problem.

Justice Scalia had his own spin on the absurdity argument. In his dissenting opinion, he argued that under Massachusetts’ expansive reading of “air pollutant,” the EPA would have to regulate “everything airborne, from Frisbees to flatulence.” That must be where the odor threshold comes in.

Finally, the EPA invoked the so-called Deference Canon – the rule that courts should generally defer to the interpretations of administrative agencies. This is sometimes known as “Chevron deference,” after the Supreme Court case of Chevron v. Natural Resources Defense Council. But the majority of the Court held that the agency’s failure to address the possibility that greenhouse gases contribute to climate change was not entitled to Chevron deference. In fact, the Court said that the government’s inaction was “arbitrary and capricious.”

Is it just me, or is it getting warm in here?

Thursday, March 29, 2007

Column: Fibbing, legally speaking

During their lengthy deliberations, jurors in the Lewis “Scooter” Libby trial appeared at times to be confused about the charges against the former White House aide. On at least five occasions, they asked for clarification of such concepts as “reasonable doubt” and “false statement.”

Who can blame them? The Libby jurors had the unenviable task of analyzing the elements of three distinct crimes: Libby was charged not only with perjury, but also with making false statements, and obstruction of justice.

In English, that means the government thinks that Libby fibbed, but in three very special ways. That’s not unusual: the law has an almost endless variety of terms for lying. In Black’s Law Dictionary, the word false gets an admirably concise definition (“not true”) followed by a list of twenty-one synonyms. There we see false representations and misrepresentations, frauds and deceits, counterfeits and forgeries, to name only a few.

The one term you won’t find in Black’s is “lying.” Which is odd, since the law doesn’t exactly shrink from unpleasant words; murder, rape, nuisance, and bastard all have their place in the legal lexicon. But for some reason, the law likes to tiptoe around the subject of, well, prevarication.

For one thing, lawyers love to use Latin when discussing falsehoods; it adds a touch of elegance to an otherwise tawdry subject. In legal Latin, a fabrication is transformed into the almost-refined suggestio falsi; a failure to tell the truth becomes a mere suppresio veri; and, of course, a large frothy coffee is a venti cappuccino.

“Perjury” – although it is now an English word – actually began life as yet another Latin euphemism. It comes from the Latin periurium, or “oath-breaking.” When if first appeared in English statutes in the fifteenth century it was intended to replace the Old English forswearing, which meant both swearing falsely and renouncing an oath.

Today, perjury means deliberately lying about an important (or “material”) fact while under oath. The perjury charge against Libby was based on allegations that he lied to a grand jury about conversations he had concerning former CIA operative Valerie Plame. When a witness is caught perjuring himself, the opposing lawyers will argue that the witness’s entire testimony should be discredited; or, in the traditional legal formulation: falsus in uno, falsus in omnibus. Needless to say, that is not the sort of language one bandies about down at the dockyards.

Also from Latin comes subornation of perjury, inducing another to commit perjury. “Subornation” is formed by sub (“under”) plus ornare (“to equip,” related to “ornate”). The first recorded reference to subornation of perjury appears in the 1588 book Lawier’s Logike.

Despite the onslaught of Latin, the Anglo-Saxon “forswear” never entirely disappeared from the legal vocabulary. It is still technically available for those who like the sound of archaic words, and who probably also like to pick up their groceries at Ye Olde Victual Shoppe.

Forswear is listed in Black’s as a general term for oath-breaking; unlike perjury, it does not require that the false statement refer to a “material” issue. In addition to perjury and forswearing, there are the nearly-identical offenses of false swearing, false oath, and the Latin crimen falsi (confusingly, sometimes listed as falsi crimen). The fact that the law has five ways to describe oath-breaking reflects its splendid vocabulary, as well as its impeccable logike.

The crime of “making false statements” has the advantage of being in English, but it unfortunately gives the impression that one might go to prison for celebrating yet another twenty-ninth birthday. In fact, the offense consists only of lying to federal officials. In the Libby case, the indictment charged Libby with deceiving FBI agents, again about Valerie Plame.

Fraud is the broadest legal term for dishonesty. The word comes from the Latin fraus, “deceit” or “injury.” Although it is but a one-syllable word, fraud inspires judges to new heights of eloquence; or verbosity at any rate. A former justice of the Pennsylvania Supreme Court once described fraud as

The evil of evils. . . It is the match in the hayloft, the serpent in the garden, the weasel in the chicken yard, the spider in the web, the false bottom to the pool.

Everything, it seems, except the “delete” button on the keyboard.

The verb form of fraud is to defraud. This is confusing to non-lawyers, since “defraud” sounds like a distinctly good thing – as in, “I called the police and they were able to defraud the situation.” But in defraud, the “de” prefix acts as an intensifier, meaning “completely” or “thoroughly,” as it does in such words as declare, denude, and despoil. Like “fraud” itself, defraud has roots in Classical Latin, from the verb defraudare.

Fraud encompasses such practices as misrepresentation, obtaining money by false pretences, and false advertising. One variation on false advertising is passing off – representing your goods or services to be those of another – which is also known by the less-formal sounding palming off. The use of “palm” as verb, meaning “to pass off by trickery or fraud” is recorded as early as 1679. American courts have referred to “palming off” goods since at least the 1880’s.

A perennial controversy is whether a person’s silence – a mere suppresio veri if you will – counts as fraud. The answer, naturally, is that it depends on the circumstances. Did the defendant have a duty to speak? The venerable common law crime of misprision of felony denotes the act of deliberately concealing knowledge of a felony. The word “misprision” comes from the Anglo-Norman mesprison, originally meaning mistake.

In contract law, failure to disclose certain facts, although not a fraud, might render the contract voidable. This is the case, for example, with insurance policies, which are said to be contracts uberrimae fidei (of the utmost faith).

Making a false document with the intention of passing it off – or palming it off, for that matter – as genuine is forgery. Forgery comes from the Old French forgier, meaning “to fashion” or “to pound into shape.” Thus forgery is a metaphor: just as the blacksmith “forges” iron on the anvil, the criminal forges documents on the desk. Forging of money or securities is known as counterfeiting, from the Old French contrefaire, or “to make in opposition or contrast.”

In 1827, a local constable in Painesville, Ohio caught a gang of counterfeiters using an odd-looking machine to coin money. One of the locals dubbed the machine a “bogus,” thought to be short for tantarabogus, a mysterious folk word with roots in ancient Britain. In any event, bogus has become a quasi-legal term (as in the phrase bogus check) as well as word of common usage (as in totally bogus).

It is often said that a “little white lie” is harmless. In law, some lies are positively necessary. A feigned accomplice is one of law’s more helpful liars: a person who pretends to conspire with others in the commission of a crime, but only for the purpose of tipping off the authorities.

Arguably, the very existence of law depends on lies – a very peculiar set of lies known as legal fictions. A legal fiction is the assumption made by courts of facts known to be untrue. Consider orders made nunc pro tunc (“now for then,” i.e., retroactively) or the Fertile Octogenarian Rule (the presumption that every person is capable of procreation regardless of age).

The legal term constructive, as used in phrases like constructive eviction or constructive delivery, generally means “treat something as though it happened even though you and I know it didn’t.” Viewed objectively, these are nothing more than legally-sanctioned lies. But, of course, they never did anybody any harm. Honestly.