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Renewable Energy Update

EPA Tries to Block Murray Energy's Deposition of Gina McCarthy

November 16, 2015

By: Robert G. McLusky

We have previously written about Murray Energy’s lawsuit against EPA in the Northern District of West Virginia.  There, Murray Energy claims that EPA has failed to conduct studies required by Section 321 of the Clean Air Act about the effects of its rules and enforcement actions on jobs.  The Court has permitted Murray Energy to conduct discovery, holding dispositive motions by EPA in abeyance pending its completion.  

Murray Energy has scheduled the deposition of EPA Administrator Gina McCarthy. EPA has objected and sought a protective order in district court, contending that absent compelling circumstances (not shown to exist in this case), agency heads are immune from such disruptive discovery requests.  Murray Energy contends that EPA has long resisted discovery and that McCarthy has personal knowledge important to Murray Energy’s claims.  Because the district court had not yet ruled on the request for a protective order, and with the deposition date looming EPA elected to seek relief directly in the Fourth Circuit.  There, EPA sought a writ of mandamus to compel the district court to prohibit the deposition.

But, on November 12, the District Court ruled.  It denied the request for a protective order, but stayed the deposition until December 4 to give EPA time to seek review in the Fourth Circuit.

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


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