ELR Citation: ELR 20001
No(s). H-87-2356 (S.D. Tex. Jun 7, 1989)

The court holds that Clean Air Act §211(d)'s penalties for violations of the Environmental Protection Agency's (EPA's) lead phasedown rule are unconstitutional. Section 211(d) violates the separation of powers doctrine by subjecting the judgment of an Article III court to review by the executive branch. Section 211(d) calls for a fixed $10,000 per day penalty; while the court can only determine the number of days of violation and then impose the mandatory penalty, EPA can remit or mitigate the penalty. Moreover, by predetermining the amount of penalty, the statute violates Fifth Amendment rights to due process by denying rights to present equitable defenses and discretion in the court's imposition of penalties.

Counsel for Plaintiff
Robert Derden, Ass't U.S. Attorney
U.S. Courthouse, 515 Rusk St., P.O. Box 61129, Houston TX 77002
(713) 229-2602

Counsel for Defendant
Louis S. Zimmerman
Fulbright & Jaworski
600 Congress Ave., Ste. 2400, Austin TX 78701
(512) 474-5201

Debra B. Norris
Fulbright & Jaworski
1301 McKinney St., Houston TX 77010
(713) 651-5151