Court wants acronyms cut ASAP in EPA GHG fight

Source: Ellen M. Gilmer, E&E News reporter • Posted: Thursday, February 21, 2019

A federal appeals court yesterday chided litigants for using a slew of acronyms and other abbreviations in a dispute over the Trump administration’s decision to revisit Obama-era clean car standards.

The U.S. Court of Appeals for the District of Columbia Circuit warned lawyers in the case to “limit the use of acronyms and to avoid using acronyms that are not widely known,” as required by circuit rules.

Among the potential offenders: MY for model year, TAR for technical assessment report, OD for original determination, PD for proposed determination, and RD for revised determination.

“Upon review of the brief(s) recently filed in this case, the Clerk’s Office has found that the text contains numerous acronyms and other abbreviations. Therefore, you are advised to reexamine the brief(s) to ensure conformity with the court’s policy,” court clerk Mark Langer wrote in a letter to all lawyers in the case yesterday.

The litigation involves EPA’s decision to reverse Obama-era findings that formed the basis for greenhouse gas emissions standards for model year 2022-25 vehicles (Greenwire, Feb. 8).

The environmental groups, states, power companies and others challenging EPA’s decision have a week to submit revised briefs if needed and still must keep to strict word count limits.

The clerk has sent similar letters before, warning parties in recent litigation against the Federal Energy Regulatory Commission and a case involving Interior Department trophy hunting rules about their word-shortening efforts.

The seemingly innocuous use of acronyms and initialisms has dogged lawyers in the D.C. Circuit for years, often resulting in harsh reprimands from judges.

“The Court from time to time reminds litigants of its anti-acronym position,” Brigham Young University law professor Aaron Nielson, who studies the D.C. Circuit, said in an email today.

In one infamous criticism named the “benchslap of the day” by the legal blog Above the Law, Senior Judge Laurence Silberman slammed the Delaware Riverkeeper Network for its acronym-laden briefs in a natural gas pipeline case decided in 2014.

“The use of obscure acronyms, sometimes those made up for a particular case, is an aggravating development of the last twenty years,” Silberman wrote in a concurring opinion.

He also berated Delaware Riverkeeper Network attorney Aaron Stemplewicz in person during oral arguments in the case, an experience the Pennsylvania attorney remembers in painful detail.

“It was, ‘I apologize, Your Honor. I humbly apologize, Your Honor. I apologize, Your Honor,'” Stemplewicz said, recalling the exchange.

He never forgot the lesson about truncated words.

“I’ll tell you what, when it comes to the D.C. Circuit, I use no acronyms,” he said. “Whether or not the court frequently uses those acronyms in their own opinions, I don’t even use those, in an abundance of caution.”

In another energy-related case in 2012, the D.C. Circuit cracked down on shortened terms used in litigation over the Yucca Mountain nuclear waste site. Silberman again led the charge, criticizing the Department of Energy and its challengers for the number of obscure acronyms used in briefs.

“Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved,” he wrote in an opinion that year (Greenwire, Nov. 20, 2012).

The court hasn’t yet announced whether Silberman will sit on the panel for the clean car standards case.

Nielson said he sympathizes with the lawyers.

“In defense of litigants, it is easy to see why acronyms can be so attractive,” he said. “The more technical the subject matter, the more useful acronyms become. Unfortunately, technical [cases] are also the ones in which the Court already confronts a steep learning curve. So there has to be a balance.”

Nielson added that the D.C. Circuit has some firsthand experience with shortening lengthy names.

“The name ‘D.C. Circuit’ itself is shorthand,” he said. “After all, the ‘United States Court of Appeals for the District of Columbia Circuit’ is a mouthful.”