Dozens of industrial companies and trade organizations challenged two Clean Air Act-related boiler regulations imposed by the Environmental Protection Agency (EPA): the Major Boilers Rule and the Area Boilers Rule. These rules allow uninjured citizens to sue regulated companies should their boilers malfunction. Lower courts upheld the rule and the boiler owners and operators petitioned the U.S. Supreme Court to review the case. Because the Clean Air Act requires regulated parties to avoid hazardous air pollution only where “achievable,” PLF supports the petition and argues that the text of the law exempts malfunctions from the stringent CAA requirements and its citizen suit provision.
The Environmental Protection Agency is notorious for its administrative overreach. The Clean Air Act, enforced by the EPA, regulates hundreds of companies and industries ranging from the American Municipal Power company, the petitioner in this case, to the American Chemistry Council, the Rubber Manufacturers Association, the American Home Furnishings Alliance, the Florida Sugar Industry, and many, many more. All of these industries rely on boilers to power their operations. Like every other mechanical device, boilers occasionally malfunction. In fact, statistically, a boiler is likely to malfunction every 3-5 years. Until recently, the EPA rules made allowances for such malfunctions, and did not subject owners and operators to strict liability under the Clean Air Act when the malfunctions occurred.
In 2011, the EPA enacted new rules to govern the more than 200,000 boilers in the nation, requiring malfunctioning boilers to meet the emissions standard generally applicable to properly operating boilers. Failure to meet the standards makes the owner or operator liable as a matter of strict liability. Congress used the word “achievable” in the Clean Air Act to explicitly make clear that the statute was not a strict liability statute, yet the EPA’s new rules ignore this limitation on the agency’s regulatory power. The agency claims it generally will not enforce the regulations when malfunctions take place; instead, it will review each case on an individual basis. But the CAA allows enforcement by citizen suits—rendering the EPA’s promise of non-enforcement a sham. As amicus curiae, PLF supports the industries’ petition to the Supreme Court.
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