- The Washington Times - Monday, January 17, 2000

In its zeal to apply Clean Air Act standards to power companies in the Midwest and Southeast, the Environmental Protection Agency (EPA) is trampling the United States Constitution. And, ironically, it is undermining the very legislation it is trying to enforce.
On Nov. 3, 1999, EPA filed a lawsuit against 12 electric companies, involving 32 power plants, located in the Midwest and Southeast. EPA asserts that maintenance work conducted by these companies, most of which took place a decade or so ago, violates the Clean Air Act because the work amounted to modifications of the plants without permit. EPA seeks to impose fines in the amount of $27,000 per violation, per day, from the date of maintenance until today. And, now that the companies are on notice that EPA believes they have violated the law, continued operation of the 32 power plants could be construed to be a knowing violation and therefore, criminal. Even if these companies sought additional permits, it would take years to secure them. Without additional permits, the power plants would have to shut down immediately to avoid criminal prosecution, thus disturbing the nation's reliable supply of electric power.
The utilities are seeking help from Congress in the hope that lawmakers will determine that routine maintenance at power plants done after Nov. 1, 1999, when EPA filed its suit will not require a Clean Air Act permit, as long as the maintenance does not increase emissions from the facility. This provision would allow the utilities to operate and EPA could still proceed with its lawsuit against the power companies. What EPA would lose in this situation however, is the ability to threaten utilities with billions of dollars of additional fines for alleged violations during the years of litigation.
Critics are claiming business is assaulting the Clean Air Act by seeking a legislative fix that would immunize the utilities from mounting fines and penalties for the duration of any lawsuit. What is missing from those arguments is any understanding of the long history of EPA's actions and that EPA's heavy-handed antics will affect virtually every industry in the nation.
EPA's attack on utilities stems from the fact that in May the D.C. Circuit Court of Appeals, in a suit brought by the U.S. Chamber of Commerce, found EPA's changes to Clean Air Act regulations to be an unconstitutional usurpation of congressional authority. Based on that decision, another panel of the D.C. Circuit stayed EPA's nitrogen oxide regulations in connection with the dispute between the Northeast and the Midwest and South over who is causing the pollution in the Northeast. Once the second court panel took this action, EPA's new air regulations were eviscerated. Amazingly, EPA has undermined the Clean Air Act through its own unconstitutional power grab not because of an assault on the Clean Air Act by business.
Frustrated New York State officials announced they are suing Midwest and Southeastern utilities under another provision of the Clean Air Act which allowed older utilities to operate provided they did not make major modifications to their facilities. New York asserted that the maintenance activities at these facilities constituted a major modification and therefore, required new EPA permits. EPA, despite the fact that the D.C. Circuit had ruled the new air regulations unconstitutional, copied New York and brought suit against the utilities, seeking huge penalties. Since litigation takes years to resolve, EPA is essentially pressuring the power companies to settle out of court, rather than risk billions of dollars in fines and face possible criminal prosecution.
All of this risk is over an issue on which EPA has never, in some 23 years, provided the industry any guidance as to when routine maintenance becomes a modification in EPA's mind. All of this uncertainty is over an issue on which EPA has for years refused to publicly release the scientific data supporting its wildly exaggerated health claims.
EPA's actions are not limited to power companies. Throughout the United States, EPA is using the same tactics against oil refineries, pulp and paper companies, chemical manufacturers and the iron and steel industry. It appears that EPA's plan is to extort a quick settlement from the utilities because they cannot risk an extended legal fight. If successful, EPA will start its rolling attack on all of American manufacturing. The only question is "Who is next?"
EPA is retaliating against business for successfully filing suit and having EPA's new air regulations declared unconstitutional. Although it is disturbing when opponents criticize corporate citizens for exercising their constitutional right to petition their government, it is even more frightening when a government agency retaliates against citizens for securing their constitutional rights in court. EPA is an agency that has broadly overstepped its authority. It is an agency that refuses to inform the public as to the scientific basis for its mandates. It is an agency that is out of control.

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