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Energy and Environment Monitor

EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy: UPDATE 4th Circuit Denies Relief to EPA

July 10, 2015

By: Robert G. McLusky

We have previously reported on Murray Energy’s action against EPA in the Northern District of West Virginia.  There, Murray has sued EPA to enforce § 321(a) of the Clean Air Act, which requires EPA to “conduct continuing evaluations” of potential loss or shifts of employment” which may result from the administration or enforcement of the Clean Air Act. 

Recently, the District Court held EPA’s summary judgment motion in abeyance pending discovery and ordered EPA to respond to Murray’s discovery requests.  Now, EPA seeks an order from the Fourth Circuit Court of Appeals compelling the District Court to vacate its order requiring EPA to respond to discovery. 

EPA’s petition to the Fourth Circuit reiterates that the District Court previously denied two EPA motions to dismiss the case.  The first motion argued that the Act does not command EPA to prepare the studies sought by Murray.  The second argued that Murray lacked standing.  After the District Court denied those motions, EPA moved for summary judgment, arguing that even though it had no duty to prepare the evaluations, it had nonetheless done so.  The District Court has held this latest motion in abeyance pending EPA’s response to discovery requests from Murray.  EPA now claims that it should not have to submit to Murray’s discovery requests.  Essentially, EPA claims that it has already demonstrated compliance with the Act, but that if its contention is wrong, then the sole remedy available to the District Court is to order compliance with the Act—and that additional discovery would have no bearing on that issue.

The remedy sought by EPA is unusual—and requests of this type are usually denied because appeals courts rarely consider challenges to district court rulings unless they dispose of an entire case. 

UPDATE:  By order of July 9, 2015, the Fourth Circuit denied EPA’s petition to reverse the District Court’s order allowing discovery to proceed against EPA. 

The article was authored by Robert G. McLusky, Jackson Kelly PLLC.


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