Advocates, Beware Selectively Quoting Your Opponent

Judge Ginsburg’s opinion upholding the EPA’s new national ambient air quality standard (NAAQS) for nitrogen dioxide [pdf] sounds a warning note about the dangers of leaving out key words from a quotation:  

[Petitioner American Petroleum Institute] first contends the EPA, by relying upon an internal meta-analysis that was not published, “did not follow its own requirements … that it rely only on peer-reviewed and published studies in reviewing NAAQS.” Perhaps the API should have had its brief peer-reviewed. In quoting the EPA’s Review Plan, the API omits the first and most relevant word of the following sentence: “Generally, only information that has undergone scientific peer review and that has been published (or accepted for publication) in the open literature will be considered.” Of course, “generally” here indicates the practice in question will not invariably be followed.  A bad start for the petitioners.

We are certain Judge Ginsburg took no pleasure in pointing out the omission.

Later in his opinion, Judge Ginsburg notes conflicting intra-circuit authority on the question whether an agency must give a reasoned explanation for declining to follow its own non-binding “general” rules.  But this case did not require the court to resolve that conflict, because the meta-analysis the EPA relied on was in fact peer-reviewed as the agency defines that term.

American Petroleum Inst. v. EPA, No. 10-1079 (July 17, 2012) (Ginsburg, S.J., joined by Rogers, J., & Edwards, S.J.)

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