WASHINGTON, DC/ATLANTA, GA: In his 2014 UARG v. EPA (134 S. Ct. 2427) opinion for the Supreme Court, Justice Scalia warned the U.S. Environmental Protection Agency (EPA): “We are not willing to stand on the dock and wave goodbye as EPA embarks on this multiyear voyage of discovery. We reaffirm the core . . . principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”
Unfortunately, the landmark 2014 decision in SLF’s case against the EPA in which the Court struck down the EPA greenhouse gas regulations as a gross exercise of executive overreach, has not curbed the EPA's appetite for "more and more and more power" - without Congressional authorization.
Today, SLF filed a critical amicus brief urging the U.S. Supreme Court to grant the petition of American Municipal Power and review EPA’s “Boiler MACT” Rule, which arose out of sue and settle efforts between the Sierra Club and EPA. In lay terms, the Rule outlaws boiler malfunctions – in other words, if any of the 200,000 boilers at any of the 100,000 separate facilities which are directly affected by the regulation malfunction, the owner could be fined by EPA or be dragged into court by a citizen suit.
Notably, citizen groups (such as the Sierra Club) have already made their intentions clear, declaring that they intend to bring enforcement cases. As SLF points out in its brief, EPA’s ban on malfunctions is an unconstitutional overreach, is unconstitutionally vague, and was formulated through an unlawful collaboration with outside interests (e.g. Sierra Club). EPA rewrote the clear language of the Clean Air Act and requires operators to do the impossible and prevent the unpreventable.
And, what is worse, the Agency did so in collaboration with environmental groups only through its costly and unlawful sue and settle tactics, ensuring that the regulated community had no opportunity to properly comment on the rule. Because EPA’s actions so blatantly violate the Constitution and ignore Justice Scalia’s warning, SLF is hopeful that the Court will grant review.
Click here for SLF's Supreme Court brief