Any Good Lawyer Would Have a Hearty Laugh at RYAM’s Argument

Thirty-five​ years ago, I found myself among seven other uniformed Air Force attorneys called “Judge Advocates“ or “JAGs,” fortunate enough to be assigned to George Washington University to obtain a Master of Laws degree in Government Procurement Law. I went on from there to spend 30 years defending the Air Force against contractor claims, and in bid protests, with key programs and huge sums at stake, so I suppose the Air Force got its money’s worth.

In 1989, Professor Ralph C. Nash, the undisputed giant in this field, still taught Formation of Government Contracts. Professor Nash, a 1953 graduate of Princeton and 1957 graduate from GW Law, is still a Professor Emeritus at GW. I fondly recall his booming voice, sideburns and eyebrows he seemed to never think of trimming, and a boisterous laugh, especially when questionable positions were taken by the parties in the cases we studied. We all loved his class!

I can picture him laughing now if he were to hear of RYAM​’s argument that its proposed plant to manufacture ethanol is not “chemical manufacturing,” prohibited under our Comprehensive Plan (CP) and Land Development Code (LDC). 

When moneyed defense contractors overreached to make arguments, like RYAM​ is doing here, he was fond of saying, “At some point, if it looks and quacks like a duck, then you have to call it a duck!”

Interpreting legislative provisions, like our city’s CP and LDC, is slightly different than​ interpreting contracts, but many principles are the same, like the “Plain Meaning Rule.” Put simply, words are to be given their ordinary and plain meaning unless the context indicates otherwise. If the plain meaning of words used in a contract or statute are clear and unambiguous, courts will apply them, and not look beyond them to other matters.

RYAM​ argues that our city manager and city attorney look to an arcane 2007 EPA ruling, on another matter entirely, to interpret language that is clear and unambiguous on its face. That’s just the sort of argument, one blatantly contrary to the Plain Meaning Rule, that would evoke that huge laugh.

And, back in the day, were Professor Nash to have looked at RYAM​’s analogy of ethanol to beer and spirits? Or to RYAM​’s attempt to draw an equivalence between our cherished commercial establishments that serve us these delights and its proposed 2.5-acre tangle of pipes, processing tanks, vapor recompressing​ equipment, motor control equipment, and a cooling tower? 

Well, boy wouldn’t those eyebrows raise in a wonderfully playful and questioning manner?

Our CP is clear and unambiguous. It expressly prohibits chemical manufacturing as well as chemical refining in our industrial zones. Our LDC is equally clear and unambiguous. It parrots verbatim the same express prohibitions.

Our LDC also permits approved industries to add “ancillary activities” so long as the ancillary activity itself is not expressly prohibited. Once again overreaching, RYAM​ pulled this term out of its context in its Dec. 12 TRC Pre-Brief​ by omitting language qualifying what ancillary activities are permitted, and expressly prohibiting chemical manufacturing! So, there is no conflict in the CP or LDC, nor is there any conflict between them.

A full examination of these code provisions and why the city must deny RYAM’s application to bring ethanol manufacturing to Fernandina is beyond the scope of this article, but the city already has obtained one from an outside law firm. That opinion and analysis of my own can be found on No Ethanol Fernandina’s website.

Check it out and you’ll see why I am recalling my old professor grinning, and then laughing.