On October 3, in accordance with the October 17 federal court order, EPA submitted a proposed schedule for studying the employment impacts of its administration and enforcement of the Clean Air Act. As previously summarized here, the federal district court previously ruled that EPA failed to conduct mandatory evaluations of the employment effects of its enforcement of the Clean Air Act—especially as it relates to coal mining and usage—and ordered EPA to submit a plan for doing so within 14 days.
EPA’s plan proposes to use its Science Advisory Board to determine the scope and contents of the study. In the past, EPA has used its SAB to steer a number of controversial topics in the direction of its choosing. It has done so by restricting membership of the panels appointed to assist the SAB to persons with no experience outside of academia and by carefully managing the “charge questions” used to guide the SAB’s work product. Its careful use of the SAB has provided EPA with “cover” in pursuing its agendas on controversial issues. However, it is less clear that EPA will be able to manage the process as it has done in the past if its efforts are under the supervision of a federal court that has not exhibited much sympathy to EPA’s legal positions in the case. It is also unclear if Murray Energy will oppose the use of the SAB.
Below is the schedule proposed by EPA:
| STEP |
ESTIMATED TIMING |
| EPA submits draft charges to Board and gives public notice/posting | 45 days |
| Public comment period and EPA revises charges | 60 days |
| Board publishes Federal Register notice for panel nominations | Concurrent |
| Public panel nomination period | 30 days |
| Board initially screens and evaluates nominees and gives public notice/posting of final Panel formation | 90 days |
| Board requests formal appointment process, including personnel-related actions, for panel members, members are formally appointed and preliminary, background information and panel schedule considered | 90 days |
| Board holds meetings, deliberates, and issues report | 12-16 months |
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.