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Energy and Environment Monitor

The “Other” Murray Energy Clean Air Act Challenge

April 28, 2015

By: Robert G. McLusky

Murray Energy is the lead plaintiff in a well-publicized challenge to EPA’s proposed Clean Power Rule in the D.C. Circuit Court.  See In re: Murray Energy Corp. v. Environmental Protection Agency, et al., No. 14-1112 (D.C. Circuit).  But, it is also the only plaintiff in an action against EPA in federal court in Wheeling, West Virginia.  There, Murray has claimed that EPA has failed to discharge an obligation under Section 321(a) of the Clean Air Act to conduct “continuing evaluations of potential losses or shifts in employment which may result from EPA’s administration of the CAA.”  Murray seeks to compel EPA to conduct the required studies and to prohibit EPA from finalizing or implementing its Clean Power Rule until it completes the required studies.  Murray claimed that EPA’s failure to conduct or release the studies has adversely affected Murray’s ability to lobby Congress about the effects of EPA’s rules on coal production. 

EPA initially moved to dismiss the case, claiming that Murray lacked “standing.”  It claimed that Murray had no unique harm from EPA’s failure to conduct the study and that any harm to Murray has occurred as a result of EPA’s past rules and practices—not its failure to conduct the required evaluation.  It also said that any harm Murray suffers wouldn’t be “redressed” (fixed) by an order requiring EPA to conduct the studies.

Judge John Preston Bailey disagreed.  He determined that Murray has alleged enough of an injury to pursue the merits of its case—that the required studies could yield information that would allow Murray to seek changes in the CAA from Congress. See Memorandum Order Denying Motion to Dismiss and Motion to Stay Discovery.

After EPA’s motion to dismiss was denied, it took a different tack.  On April 10, 2015, it filed a motion for summary judgment, claiming that it has ALREADY UNDERTAKEN the required studies.  With this motion it filed fifty (50) papers or studies with the Court thereby purporting to have discharged any obligation it had under § 321(a).  Following this article is a list of the 50 studies.  The first 25 are available here.

It is interesting that EPA is claiming to have conducted the studies and is claiming to have produced them.  Below is a snip from a 2013 U.S. Chamber of Commerce discussion of the history of the statutory section.  There, the Chamber noted that EPA was non-responsive when the Chamber sought the studies in late 2012:

Moreover, on September 2012, the U.S. Chamber filed a Freedom of Information Act (“FOIA”) request with EPA asking the agency to provide ‘[a]ll draft, interim, and final reports and/or evaluations prepared by EPA or its contractor(s) pursuant to section 321 of the Clean Air Act.’  EPA acknowledged receipt of the FOIA request and requested an extension of time to respond until December 1, 2012.  Subsequently, on January 22, 2013, EPA informed the Chamber that the agency’s records indicated that our FOIA request had been responded to and that the request had been removed from the agency’s FOIA log.25  As of the date of this hearing, EPA has not provided any document responding to the Chamber’s FOIA request or denied that request.

According to Murray, EPA’s motion for summary judgment and its production of some 50 papers has been taken as part of an effort to end and avoid discovery.  Murray contends that EPA has unilaterally declared that the papers it produced are the universe of studies it has undertaken and that no further investigation is warranted.  Murray disagrees and on April 22 filed a motion to compel discovery. 

This article was authored by Robert G. McLusky.


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