April 26, 2017

Pushing back (again) against EPA overreach

By Mark Miller Senior Attorney

This week, Pacific Legal Foundation, along with the Competitive Enterprise Institute (CEI), and the NFIB Small Business Legal Center, filed an amicus brief at the Supreme Court of the United States asking the Court to grant review of another example of federal regulators run amok. In American Municipal Power, Inc. v. U.S. EPA, we ask the High Court to require the EPA to follow the plain language of the Clean Air Act (CAA) when regulating industry, institutions, and commerce, rather than make up rules that do nothing to protect the air but a great deal to hurt private enterprise.

The case involves a challenge to two Clean Air Act-related boiler regulations: the Major Boilers Rule and the Area Boilers Rule. Pursuant to these rules, the EPA will allow for Clean Air Act citizen suits to be brought against the regulated parties should their boilers malfunction, despite the language in the Clean Air Act which requires regulated parties to only avoid hazardous air pollution where “achievable.” The regulated parties believe, and PLF agrees, that the text of the CAA shows Congress intended malfunctions to be exempt from the stringent CAA requirements and its citizen suit provision; unavoidable malfunctions should not give rise to citizen suit liability without more shown to prove fault on the boiler operator’s part.

If unavoidable boiler malfunctions violate the Clean Air Act as a matter of strict liability, that opens the door to malfunctions of other industrial equipment similarly violating the law. 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 is interpreting the statute otherwise. The EPA 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 for citizen suits to enforce the relevant provisions of the CAA that underlie the regulations—thus the EPA ‘promise of nonenforcement,’ which is a sham of course, is even more of a sham than usual—because citizens can bring suit even when the EPA in its benevolent despotism decides not to bring an enforcement action.

Pacific Legal Foundation‘s Red Tape Rollback project, spearheaded by Todd Gaziano, PLF‘s Senior Fellow in Constitutional Law, represents the latest and one of the greatest manifestations of our longstanding battle with the overreaching regulatory state. We have also pushed back against the federal bureaucrats in lawsuits challenging their actions, and through amicus briefs supporting others fighting the good fight against overzealous regulators. This amicus brief presents another opportunity for us to push back against EPA overreach via an amicus brief filed at the Supreme Court.

Thanks to Luke Wake at the NFIB Small Business Legal Center, and William Yeatman at CEI, for joining forces with PLF on the brief in order to amplify our message.

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American Municipal Power v. Environmental Protection Agency

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.

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