On October 17, 2017, a federal court in West Virginia ruled that EPA has failed to conduct mandatory evaluations of the employment effects of its administration and enforcement of the Clean Air Act, especially as they relate to coal mining and usage. In 2014, Murray Energy sued EPA in the Northern District of West Virginia, arguing that § 321 of the Clean Air Act imposes on EPA a nondiscretionary duty to conduct “continuing evaluations” of potential loss or shifts of employment that may result from EPA’s enforcement or administration of the Clean Air Act, and that EPA had failed to discharge this obligation as it relates to the coal industry in particular. Early efforts by EPA to dismiss the case based on claims that it did not have a nondiscretionary duty to conduct the evaluations or that Murray Energy lacked standing to pursue the case were previously rebuffed. See our previous reports on this case.
After the court’s ruling on its earlier motions, EPA argued that, despite making no conscious effort to conduct “evaluations” under § 321, it had nonetheless effectively discharged its obligation by conducting other evaluations. A review of the papers produced by EPA, though, left one with the impression it had simply dusted off a variety of “white papers” it found in the EPA “attic” and sought to pass them off as the required evaluations.
The parties then engaged in a long and adversarial discovery process in which the district judge at one point authorized Murray to take a discovery deposition of Gina McCarthy before the Fourth Circuit quickly vacated that order. Now, the district judge, having reconsidered some of EPA’s earlier motions, has ruled in Murray’s favor on competing motions for summary judgment. In its opinion, the Court made three significant, substantive rulings:
- § 321(a) Creates a Nondiscretionary Duty
EPA requested that the court revisit its previous holding that the statute imposed a non-discretionary duty on EPA. EPA argued that, since there was no deadline in the statute for completing the evaluations, the statute does not constitute an unequivocal waiver of the government’s sovereign immunity. Construing EPA’s motion as one to dismiss for lack of jurisdiction under Rule 12(b)(1) rather for summary judgment under Rule 56(c), the court determined that EPA’s position is not entitled to deference under Chevron USA v. NRDC. The court rejected EPA’s argument that a “date-certain deadline” is necessary to find a non-discretionary duty even though EPA’s failure to discharge the obligation might be reviewable only for an abuse of discretion.
- Plaintiffs Have Standing to Maintain the Action
The court reiterated its earlier finding that Murray’s allegations were sufficient to establish it had standing to pursue the action. Murray claimed that a combination of EPA’s regulatory actions and its failure to evaluate their effect on employment had a coercive effect on the use of coal to generate electricity and on Murray Energy’s ability to obtain required evaluations with which it could lobby for change in Congress.
- EPA has failed or refused to conduct the evaluations required by § 321 of the Clean Air Act
EPA argued that evaluations it had previously conducted, even though not expressly conducted under § 321, should “count” as compliance with the statutory requirements. As observed by the court, until recently EPA had made no claim that it was complying with § 321(a), whether intentionally or not. For example, when six U.S. senators requested the results of EPA’s continuing evaluations of the potential loss or shifts in employment resulting from four greenhouse gas rulings, EPA Administrator McCarthy responded in 2009 that the agency “has not interpreted Clean Air Act § 321 to require EPA to conduct employment investigations” and that “conducting such investigations as part of rulemakings would have limited utility.” EPA asserted that 64 documents in its possession constituted compliance with its obligation to conduct continuing evaluations. The court rejected these claims from EPA, concluding that the documents generally consisted of regulatory impact analyses and economic impact analyses prepared to comply with other statutory and executive order requirements that did not present a continuing evaluation of actual loss and shifts in employment.
EPA has 60 days from the entry of the District Court’s Order to file an appeal with the Circuit Court of Appeals.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.