One of the many arcane regulatory mandates coming out of the Obama Administration was the MACT Boiler Rule, in which the Environmental Protection Agency (EPA) issued new standards governing manufacturer and maintenance of boilers. But as arcane as this rule may sound, it may expose ordinary small business owners to major liabilities—through no fault of their own. This is because EPA’s boiler rule requires the impossible.
The reality is that boilers—which are commonly used in all sorts of industries, especially in manufacturing—will occasionally malfunction. But EPA’s MACT Boiler Rule requires 100% compliance with its stringent Clean Air Act standards all of the time, even when a boiler is malfunctioning. But of course, boilers can and do malfunction, even when properly maintained. As with any piece of equipment, things break-down at times. But rather than recognizing that special rules should apply in the case of a malfunction, EPA chose to push forward with an inflexible rule that renders any malfunction an automatic violation of the Clean Air Act. In turn, that means that any business operating a boiler is on the hook for potentially ruinous penalties from EPA or lawsuits from crusading environmental organizations.
EPA’s answer to this very serious concern is that it won’t likely come down hard on business owners who suffer a malfunction if they’ve taken reasonable steps to maintain their boiler in good working order. But, that magnanimous promise of executive restraint is hardly comforting to a small business owner who stands to lose his or her life’s work over something completely beyond their control. To be sure, that argument is reminiscent of EPA’s assurance that it wouldn’t likely seek to impose the full $75,000 per day penalties it was threatening against an Idaho family for building a home on a supposed wetland (the property was dry and there was development all around their home). In response, the late Justice Scalia’s quipped: “Well, I wouldn’t bet my house on [that].”
But even if EPA shows restraint in enforcing this impossible standard, there is no guarantee that environmental activists will hold-off from filing suits. To be sure, the Clean Air Act’s citizen suit provisions allow essentially anyone claiming injury by tenuous harm to the environment to sue businesses alleged to be in violation of CAA standards. This means that radical environmentalists can (and likely will) invoke the MACT Boiler Rule to bring down a reign of legal terror upon targeted industries that they would like to shut-down.
For all of these reasons, this raises an issue of nations-wide concern. As such, we’ve joined with other concerned groups in asking the U.S. Supreme Court to take the case. Not only do we contend that EPA’s is misinterpreting the Clean Air Act, but we maintain that its interpretation is patently absurd. To be sure, it’s simply not reasonable to think that Congress would intend to require the impossible of small business owners. For that matter, to the extent regulation requires the impossible, we would argue that violates the first principle of due process—which holds the law must comport with reason.
The case is American Municipal Power, Inc. v. United States EPA (previously U.S. Sugar Corp. v. EPA) For more commentary, check out Mark Miller’s post on the PLF Liberty Blog.
