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Energy and Environment Monitor

Fourth Circuit Refuses to Order EPA to Conduct Coal Jobs Analysis: When “Shall” Means “Eh, Maybe”

June 30, 2017

By: Robert G. McLusky

Several years ago, Murray Energy sued EPA in the Northern District of West Virginia under § 304(a)(2) of the Clean Air Act, which authorizes actions against EPA when it fails to perform an act or duty “which is not discretionary.” Murray sought to enjoin further rulemaking by EPA and the implementation of the Clean Power Plan until EPA explored the impacts of its Clean Air Act programs on the coal and energy-producing industries.  Murray argued that § 321(a) of the Clean Air Act imposed a nondiscretionary duty on EPA to conduct the studies.  

The statute Murray relied on provides that EPA “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the [Clean Air Act] and applicable implementation plans.”  We have written extensively about this case before.  In October 2016, District Court Judge Bailey ruled in Murray’s favor and ordered EPA to conduct an analysis in accordance with a rigid schedule.  He rejected arguments that previous studies EPA prepared for different purposes were sufficient to discharge this obligation.

On appeal, however, the Fourth Circuit reversed. It ruled that § 321(a) vests EPA with considerable discretion as to the scope of the studies necessary and their timing.  This discretion, it ruled, divested the district court of jurisdiction to entertain a case which depended on Murray’s claim that EPA had violated a “nondiscretionary” duty. 

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

 

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