Description: Action to compel EPA to undertake evaluation of Clean Air Act administration and enforcement on employment.
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Murray Energy Corp. v. Pruitt
Case Documents:
Filing Date Type File Action Taken Summary 01/08/2018 Order List Download Certiorari denied. Supreme Court Denied Certiorari in Coal Companies’ Case Seeking to Compel Clean Air Act Jobs Study. On January 8, 2018, the U.S. Supreme Court denied a petition for writ of certiorari filed by the coal company Murray Energy Corporation and related companies, in which the companies sought review of the Fourth Circuit’s dismissal of their action that sought to compel the U.S. Environmental Protection Agency (EPA) to conduct a study of the Clean Air Act’s effects on employment, particularly in the coal industry. The Fourth Circuit held that the district court lacked jurisdiction to hear the case because EPA had “considerable discretion” to decide how to manage the Clean Air Act’s statutory mandate that EPA “shall conduct continuing evaluations of potential loss or shifts of employment.” 09/27/2017 Petition for Writ of Certiorari Download Petition for writ of certiorari filed. Murray Energy Sought Supreme Court Review of Fourth Circuit’s Dismissal of Clean Air Act Jobs Study Case. The coal company Murray Energy Corporation and affiliated companies filed a petition for writ of certiorari asking the Supreme Court to overturn the Fourth Circuit’s dismissal of their action that sought to compel EPA to conduct a study of the Clean Air Act’s employment effects and particularly its effects on the coal industry. The Fourth Circuit concluded that courts lacked jurisdiction to review EPA’s management of the “broad, open-ended” mandate of Section 321(a) of the Clean Air Act requiring EPA to conduct evaluations of potential employment losses and shifts resulting from its administration and enforcement. The petition to the Supreme Court presented two questions: (1) whether a federal court may decline jurisdiction to compel agency action where the statutory requirements for a claim have been satisfied, and (2) whether EPA’s refusal to comply with Section 321 was within the bounds of a federal court’s authority to correct. -
Murray Energy Corp. v. Administrator of Environmental Protection Agency
Case Documents:
Filing Date Type File Action Taken Summary 07/18/2017 Opinion Download Amended opinion filed vacating judgment of district court and remanding case for dismissal for lack of jurisdiction. 06/29/2017 Opinion Download Judgment of district court vacated and case remanded for dismissal for lack of jurisdiction. Fourth Circuit Said West Virginia District Court Lacked Jurisdiction to Consider Coal Companies’ Clean Air Act Jobs Study Lawsuit. The Fourth Circuit Court of Appeals ruled that a West Virginia federal district court had erred in concluding that it had jurisdiction to consider the coal company Murray Energy Corporation’s and its affiliates’ lawsuit that sought to compel EPA to conduct evaluations of the Clean Air Act’s employment effects. The district court ruled that EPA was required to conduct such evaluations in October 2016 and set an expedited schedule for EPA’s compliance. The Fourth Circuit ruled that the provision at issue—Section 321(a) of the Clean Air Act—did not “impose on the EPA a specific and discrete duty amenable to” judicial review under Section 304(a)(2) of the Clean Air Act. (Section 321(a) provides that EPA Administrator “shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the [Clean Air Act] including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”) The Fourth Circuit said Section 321(a) imposed “a broad, open-ended statutory mandate” and that EPA was left with “considerable discretion” in managing this mandate, including getting to decide “how to collect a broad set of employment impact data, how to judge and examine this extensive data, and how to manage these tasks on an ongoing basis”—a process that a court “is ill-equipped to supervise.” The Fourth Circuit also distinguished Section 321(a)’s mandate from other Clean Air Act provisions that offered “discrete directives accompanied by specific guidance on matters of content, procedure, and timing.” The Fourth Circuit also dismissed as moot an environmental group’s appeal of the district court’s denial of its motion to intervene. 04/17/2017 Reply Download Reply brief filed by applicants-in-intervention-appellants. Briefing Completed in EPA’s Appeal of Jobs Study Order. EPA submitted its reply brief in the appeal on April 14. Environmental groups that unsuccessfully sought to intervene on EPA’s behalf filed a final brief on April 17 seeking reversal of the denial of their request. Oral argument is to take place on May 9. 04/14/2017 Reply Download Reply brief filed by EPA. 04/07/2017 Amicus Brief Download Amicus brief filed by Cause of Action Institute in support of plaintiff-appellee seeking affirmance. A nonprofit group called the Cause of Action Institute also filed an amicus brief, arguing that EPA’s failure to conduct the employment studies required by the Clean Air Act as well as a similar studies called for by the Clean Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, revealed “systemic problems with the EPA” and reflected “a lack of concern regarding the employment effects of its activities.” 04/07/2017 Amicus Brief Download Amicus brief filed by states supporting plaintiffs-appellees. States Weighed in on Side of Coal Company Appellees in Jobs Study Case. Sixteen states, led by West Virginia, filed an amicus brief in the Fourth Circuit Court of Appeals urging it to uphold the decision by a West Virginia federal court requiring EPA to prepare a study of the Clean Air Act’s effects on employment. The district court concluded, in an action brought by coal companies, that EPA had a nondiscretionary obligation to conduct such a study. The states argued that the study would provide necessary and useful information about the impacts of Clean Air Act regulations, including the Clean Power Plan and carbon standards for new power plants, that the states could use to devise economic policies and for budgeting. 03/31/2017 Brief Brief filed by plaintiffs-appellees. 03/31/2017 Response Download Response brief filed by EPA as appellee in support of affirming order denying intervention. 02/21/2017 Brief Download Principal brief filed by EPA. EPA Argued for Reversal of West Virginia District Court’s Order Requiring Agency to Evaluate Clean Air Act Employment Impacts. The United States Environmental Protection Agency (EPA) and would-be intervenor environmental groups filed their principal briefs in their Fourth Circuit appeals of a West Virginia district court’s orders requiring EPA to evaluate the impact of Clean Air Act implementation and enforcement on employment, including in the coal industry. The court also had denied the environmental groups’ motion to intervene as moot because the court had not granted the nationwide injunction on new air regulations that the plaintiffs sought and that the environmental groups wished to oppose. The district court ruled that EPA had failed to conduct such evaluations and had therefore violated Section 321(a) of the Clean Air Act. In its principal brief, EPA argued that the district court lacked jurisdiction because Section 321(a) did not impose a non-discretionary duty. EPA also argued that the coal company Murray Energy Corporation and its co-plaintiffs’ (Murray Energy) failed to establish Article III standing and that the court erred in finding that a collection of documents prepared by EPA “in the normal course of business” had not complied with Section 321(a). EPA also contended that the district court exceeded its remedial power by issuing a “detailed injunction” that imposed obligations on EPA that had no basis in the statute. Oral argument in the Fourth Circuit was tentatively calendared for the May 9–11, 2017 argument session. 02/21/2017 Brief Download Principal brief filed by intervenors/defendants. The environmental groups argued in their brief that their motion to intervene was not moot because Murray Energy still had time to appeal the denial of the nationwide injunction and because EPA could abandon its opposition to the injunction. -
Murray Energy Corp. v. Pruitt
Case Documents:
Filing Date Type File Action Taken Summary 12/14/2017 Order Download Reconsideration denied. 11/28/2017 Response Download Response filed by plaintiffs in opposition to EPA's motion for reconsideration of order granting plaintiffs' motion to amend order of dismissal. 11/14/2017 Motion Download Motion filed by EPA for reconsideration of order granting plaintiffs' motion to amend order of dismissal. 11/03/2017 Order Download Motion to amend order of dismissal granted and action dismissed without prejudice. On November 3, the district court granted Murray Energy’s motion to amend the order of dismissal and dismissed the action without prejudice for want of jurisdiction. 10/26/2017 Motion Download Motion to amend order of dismissal filed. Murray Energy moved in the federal district court for the Northern District of West Virginia to amend the order of dismissal with prejudice issued by the court on October 2, 2017. Murray Energy argued that the dismissal should have been without prejudice because the Fourth Circuit dismissed based on subject matter jurisdiction, not the merits of the case. 10/02/2017 Order Download Order of dismissal issued. 05/15/2017 Status Report Download Filing submitted by EPA to comply with district court's order of January 11, 2017. EPA Told West Virginia Federal Court How It Would Attempt Evaluation of Facility-Level Employment Impacts of Clean Air Act. On May 15, 2017, EPA submitted its initial filing in compliance with the order of the federal district court for the Northern District of West Virginia requiring EPA to prepare a study of the employment impacts of the Clean Air Act. EPA’s filing came six days after the Fourth Circuit Court of Appeals heard oral arguments in EPA’s appeal, which EPA hoped would moot its obligation to complete the work described in this initial compliance filing. EPA was required to file its employment evaluation by July 1 to meet the district court’s deadline. In the initial filing, EPA indicated that it had assembled a workgroup of 80 EPA employees to develop the evaluation and that it would use as guidance the Economic Dislocation Early Warning System (EDEWS), a program jointly administered by EPA and the U.S. Department of Labor in the 1970s that tracked information on facility closures for which environmental regulation was alleged to be a significant factor. EPA cautioned, however, that it had “serious concerns about the analytical challenges associated with facility-level evaluations generally” and believed that resuming EDEWS would result in enormous costs with little gain in reliable information. EPA indicated that time constraints would prevent it from gathering information on plant closures and employment reductions through state and local governments and the firms themselves and that it was instead undertaking “a significant data-gathering effort by utilizing publicly available information on facilities in the coal-mining and coal-fired-generation industries, compiling that information, and then conducting a qualitative assessment of the factors that may have contributed to actual or potential closures or reductions in employment.” Because of the limitations of facility-level analysis, EPA said it also would include sector-level overviews to provide context. To comply with the district court’s requirement that it adopt measures by December 2017 to continuously evaluate losses and shifts in employment, EPA said it was assembling another workgroup and developing a work plan that would involve development of a system to collect facility-level information, development of a process for compiling and evaluating the information, and determining how to make the information publicly available. 02/23/2017 Order Download Joint motion to extend deadlines granted in part and denied in part. District Court Partly Denied Request to Extend Compliance Deadlines. The district court for the Northern District of West Virginia only partially granted a joint motion to extend EPA's deadlines for complying with its order. The parties had asked for extensions of between three and four months for submission of the “comprehensive filing detailing the actions the agency is taking to comply,” the jobs study, and evidence of adoption of measures to ensure that loss and shifts in employment are continuously evaluated. The parties said additional time was necessary to allow EPA to brief new administration officials. The court granted a two-month extension to allow EPA additional time to complete the initial “comprehensive filing” requirement, but said that the change in administration did not warrant more time for preparation of the employment evaluation (which must be filed with the court by July 1, 2017) or for adoption of measures to continuous evaluate employment effects (evidence of which must be filed by the end of 2017). 02/16/2017 Motion Download Expedited joint motion filed to extend deadlines in the January 11 final order. 02/02/2017 Order Download Motion for fees denied without prejudice to renew. The court denied Murray Energy's motion for fees without prejudice to renew it after resolution of EPA’s appeal of the final order. 01/25/2017 Motion Download Motion filed seeking fees. Murray Energy Sought $3.9 Million in Fees. Two weeks after the court’s final order, Murray Energy filed a motion seeking approximately $3.9 million in fees under Clean Air Act Section 304(d). The fees sought included expert witness fees, attorney fees, and other disbursements. 01/20/2017 Notice of Appeal Download Notice of appeal filed for denial of motion to intervene. The West Virginia environmental groups filed notice that they would appeal the denial of their motion to intervene. 01/17/2017 Order Download Order issued denying motion to intervene. Because the court had denied plaintiffs' request that it enjoin EPA from promulgating regulations until it complied with the court's orders, the court also denied as moot a motion to intervene by several West Virginia-based environmental organizations that had sought to resist an injunction on EPA rulemaking. 01/11/2017 Order Download Final order issued. West Virginia Federal Court Ordered EPA to Complete Clean Air Act Jobs Analysis by July. The federal district court for the Northern District of West Virginia issued its final order in Murray Energy Corporation v. McCarthy, the lawsuit in which Murray Energy and affiliated companies successfully sought to compel EPA to undertake evaluations of the Clean Air Act’s employment impacts. After the court ruled in October 2016 that EPA had not fulfilled its mandatory duty to undertake such evaluations, EPA proposed a plan under which it would begin by undertaking an approximately two-year consultation with its Science Advisory Board. The court’s final order called EPA’s plan “wholly insufficient, unacceptable, and unnecessary” and said that the plan “evidence[d] the continued hostility on the part of the EPA to acceptance of the mission established by Congress” in Section 321(a) of the Clean Air Act. The court ordered EPA to submit an evaluation of the coal industry and other entities affected by Clean Air Act regulations no later than July 1, 2017. The court directed that the evaluation include specific components, including identification of facilities at risk of closing or reducing their workforce, information about the number of employees potentially affected and communities impacted, identification of coal mines or coal-fired power generators that had closed or reduced employment since January 2009 and analysis of whether administration or enforcement of the Clean Air Act contributed to the closures and workforce reductions, and identification of subpopulations at particular risk of being affected. The court also directed EPA to submit evidence by December 31, 2017 that the Agency had adopted measures to continuously evaluate the loss and shifts in employment caused by implementation of the Clean Air Act. The court concluded, however, that it lacked jurisdiction to grant the plaintiffs’ request that it bar EPA from proposing or finalizing regulations that affect the coal industry until it complied with the court’s orders. 12/16/2016 Notice of Appeal Download Notice of appeal filed. EPA Filed Notice of Appeal in Clean Air Act Jobs Study Case. EPA filed a notice of appeal in the action in the federal district court for the Northern District of West Virginia in which Murray Energy Corporation and its subsidiaries won summary judgment requiring EPA to conduct evaluations of the Clean Air Act’s impacts on employment, including in the coal industry. 11/14/2016 Response Download Response filed by Murray Energy Corporation to U.S.'s proposed compliance plan and schedule. Murray Energy Objected to Delay in EPA's Compliance Plan for Jobs Study and Asked Court to Enjoin Rulemaking. Murray Energy Corporation and the other plaintiffs objected to EPA’s compliance plan and schedule, describing it as “yet another in a long line of tactics to avoid timely recognition of the job losses caused by EPA’s war on coal.” The plaintiffs asked the court to order EPA to promptly comply with Section 321(a), to evaluate and report to the court “the job loss and shifts that may be attributable to EPA’s war on coal”; and to cease publication of new proposed and final rules “in furtherance of the war on coal” until it complied. 10/31/2016 Response Download Response filed by United States to court's October 17, 2016 memorandum opinion and order requiring Section 321(a) compliance plan and schedule. EPA Proposed Two-Year Consultation on Jobs Evaluation. On October 31, 2016, EPA submitted its plan for complying with the order by the federal district court for the Northern District of West Virginia requiring EPA to conduct evaluations pursuant to Section 321(a) of the Clean Air Act of loss or shifts in employment that result from implementation of the Clean Air Act. EPA said it would first consult with its Science Advisory Board (Board) regarding the analytic tools and methodologies for the evaluations, a process that EPA estimated could take more than two years. EPA said it would then take approximately 90 days to consider the Board’s advice and set an evaluation schedule. 10/17/2016 Memorandum Opinion and Order Download Memorandum opinion and order issued granting summary judgment in favor of plaintiffs. West Virginia Federal Court Ordered EPA to Evaluate Clean Air Act’s Impacts on Coal Industry. The federal district court for the Northern District of West Virginia ruled that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its non-discretionary obligation under Section 321(a) of the Clean Air Act to conduct evaluations of loss or shifts in employment that might result from implementation of the Clean Air Act. The court again rejected EPA’s argument that the obligation was discretionary as well as the argument that the coal companies that brought the action did not have standing. The court also was not persuaded by EPA’s “new interpretation” of Section 321(a) pursuant to which EPA claimed it had complied with its requirements by preparing regulatory impact analyses and economic impact analyses as part of rulemaking processes, even though they were not prepared for the explicit purpose of complying with Section 321(a). The court said that EPA’s previous “consistent acknowledgement” that it had no employment evaluations “coupled with testimony from various experts that EPA’s claimed attempts do not comply” demonstrated that EPA had not fulfilled its duty. The court ordered EPA to file a plan and schedule for compliance within 14 days. The plan must specifically address how EPA will consider the effects of Clean Air Act regulation on the coal industry. 09/09/2016 Reply Download Reply filed in support of United States' motion for summary judgment. EPA Urged Court to Decide Case Without Trial. EPA filed its reply in support of its motion for summary judgment, reiterating its view that the case was ripe for adjudication and that a trial was not necessary. EPA argued that if the court found it had not performed a non-discretionary duty, the remedy should be limited to ordering EPA to fulfill its obligation—and that other relief sought by Murray Energy, including an injunction on new regulations, was barred as a matter of law. 09/07/2016 Amicus Brief Download States filed amicus brief in support of plaintiffs. West Virginia and Other States Supported Murray Energy in Clean Air Act Jobs Study Case. Twelve states and one state agency submitted an amicus brief to the federal district court for the Northern District of West Virginia in support of Murray Energy Corporation and its affiliates in their lawsuit seeking to compel EPA to perform a study of the Clean Air Act’s impact on employment. The states, led by West Virginia, said their brief was intended to “highlight the unique challenges they face resulting from the job-loss information vacuum caused by EPA’s unlawful refusal to comply with Section 321,” the Clean Air Act provision that is the crux of the case. The states urged the court to deny EPA’s motion for summary judgment. 08/24/2016 Amicus Brief Download Amicus curiae brief submitted in support of plaintiffs' opposition to defendants' new motion for summary judgment. The Chamber of Commerce of the United States of America and the National Mining Association submitted an amicus curiae brief in support of the plaintiffs, arguing that EPA had a mandatory duty to conduct the employment analysis and that Murray Energy had standing to challenge EPA’s failure to do so. 08/19/2016 Response Download Response filed in opposition to defendants' new motion for summary judgment. Murray Energy Argued Against Summary Judgment for EPA in Jobs Case, Said Court Had Power to Enjoin EPA from Approving New Regulations. Murray Energy Corporation and affiliated coal companies (Murray Energy) filed papers opposing EPA’s motion for summary judgment in Murray Energy’s action to compel EPA to undertake an evaluation of the impact of the Clean Air Act on employment. Murray Energy argued that EPA did not have discretion to ignore the duty to conduct such an evaluation and urged the court to reject EPA’s argument that it had fulfilled its obligation to conduct the employment evaluations. Murray Energy also disputed EPA’s claim that the plaintiffs lacked standing and asserted that the court had authority to issue an injunction to ensure compliance and to preserve the status quo pending compliance by enjoining enforcement activities and the approval of further regulations. 07/20/2016 Order Download Order issued. West Virginia Federal Court Ordered EPA to Produce Some Documents, Allowed Murray Energy to Continue Depositions in Jobs Case. The federal district court for the Northern District of West Virginia continued to address discovery issues in the lawsuit brought by Murray Energy Corporation and subsidiaries (together, Murray Energy) alleging that the United States Environmental Protection Agency (EPA) failed to perform a mandated study of the Clean Air Act’s impact on employment. The trial had been scheduled to begin in July, but the court vacated the trial deadline and other deadlines in June and indicated that the deadlines would be rescheduled at a later date. On July 20, the court granted in part and denied in part a motion by Murray Energy to compel disclosure of certain documents. The court agreed with EPA that certain documents were protected by the deliberative process privilege, but directed that other documents be produced in whole or in part. The court also permitted Murray Energy to continue depositions of two EPA witnesses due to the late production of documents. A motion by EPA for summary judgment remained pending. 07/05/2016 Order Download Order issued. On July 5, 2016, the court granted EPA’s request that it restrict access to the transcript for a hearing held on June 29 during which documents stamped confidential were discussed. Murray Energy had objected to EPA’s motion. 07/01/2016 Memorandum Download Memorandum filed in response to EPA motion to designate court transcript for restricted access. 07/01/2016 Motion Download Motion filed by EPA to designate court transcript for restricted access. 06/17/2016 Order Download Order issued denying EPA motion to disqualify or exclude expert witness. Federal Court Said Former EPA Official Could Testify in Murray Energy Jobs Study Case. The federal district court for the Northern District of West Virginia denied a motion by EPA to disqualify or exclude a former EPA official from testifying in a lawsuit in which the coal company Murray Energy Corporation argues that EPA failed to fulfill its statutory obligation to study the Clean Air Act’s employment impacts. The court said that disqualification was a “drastic remedy” and that EPA had failed to sustain its burden of demonstrating that disqualification was warranted. The court stressed that the official had left EPA more than 10 years ago. The court said it could not discern any part of the official’s report that could be based on confidential information, and indicated there was no merit to the argument that the former official should be disqualified from serving as an expert witness adverse to EPA because he had once worked for the agency. The court also said that EPA’s argument that the former official lacked “scientific, technical or other specialized knowledge” was “ridiculous.” The court further concluded that policy objectives weighed in favor of allowing the former official to testify. 06/09/2016 Order Download Order issued vacating scheduling order in part. 06/07/2016 Reply Download Reply submitted in support of EPA motion to disqualify or exclude expert witness. 05/16/2016 Brief Download EPA filed motion to disqualify or exclude expert witness. On May 16, 2016, EPA filed a motion to disqualify or exclude the testimony of a former EPA Assistant Administrator for the Office of Air and Radiation in the administration of President George W. Bush. EPA said the former official’s testimony should be disqualified because EPA could not depose or cross-examine him without revealing confidential or privileged EPA information. Alternatively, EPA said that his testimony should be excluded because it included legal conclusions or was otherwise unreliable. 05/02/2016 Motion for Summary Judgment Download EPA filed motion for summary judgment. EPA Asked West Virginia Federal Court to Decide Murray Energy’s Jobs Study Case as a Matter of Law. On May 2, 2016, EPA asked the federal district court for the Northern District of West Virginia to grant summary judgment in its favor in a lawsuit brought by Murray Energy Company and affiliated companies (Murray Energy) seeking to compel EPA to perform evaluations of the Clean Air Act’s impacts on employment. Murray Energy alleged that Section 321 of the Clean Air Act imposed a mandatory duty on EPA to conduct such evaluations. In its motion for summary judgment, EPA said that it had “expended millions of dollars of public funds to review and produce hundreds of thousands of documents and privilege logs over the course of tens of thousands of hours” in the lawsuit. EPA said that a trial—scheduled to start on July 19, 2016—was not warranted because Murray Energy’s claim should be decided as a matter of law. In particular, EPA said that summary judgment in its favor should be granted (1) because Section 321(a) did not establish a nondiscretionary duty enforceable through a citizen suit, (2) because the plaintiffs had not established standing, and (3) because EPA had in fact conducted the employment evaluations described in Section 321(a). Alternatively, EPA said that if the court determined that EPA had not satisfied its obligations under Section 321(a), the court should enter judgment against EPA and order EPA to perform the job impact evaluations “and nothing more.” 02/01/2016 Notice Download Request to modify trial date withdrawn. Trial set for July. On February 1, 2016, Murray Energy withdrew its motion to modify the trial date, saying that Mr. Murray had been able to resolve the conflict. 01/22/2016 Motion Download Modification of trial date requested. On January 22, 2016, Murray Energy moved to modify the trial date to avoid a scheduling conflict with the Republican National Convention. The motion said that Robert E. Murray, Murray Energy Corporation’s chief executive officer and board chairman, who is a plaintiffs’ witness and client representative, was a member of the convention’s host committee and had commitments requiring him to be at the convention. 12/23/2015 Order Download Trial set for July 2016. Trial Set for July 2016 in Murray Energy’s Job Study Case Against EPA; CEO Resolved Republican National Convention Scheduling Conflict. The federal district court for the Northern District of West Virginia set July 19, 2016 as the trial date for the lawsuit brought by Murray Energy Corporation and its affiliates (Murray Energy) in which they charge EPA with failing to comply with its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. 11/12/2015 Order Download EPA motions for protective order or stay to preclude or postpone deposition of Administrator denied. The federal district court for the Northern District of West Virginia denied EPA’s motions for a protective order and to stay McCarthy’s deposition. The district court found that there were extraordinary circumstances justifying deposition of a high-ranking official because of the “divergent positions” taken by EPA with respect to whether it had undertaken the employment study pursuant to Section 321(a) of the Clean Air Act. The court found that McCarthy had personal knowledge of the facts and that her “apparent refusal” to comply with Section 321(a) provided “sufficient prima facie evidence of wrongdoing such that the plaintiffs will be able to probe her deliberative processes.” The district court also found that there was no viable alternative to the deposition of McCarthy. 10/29/2015 Motion Download EPA filed motion to stay Administrator's deposition. 10/16/2015 Motion Download EPA filed motion for protective order precluding deposition of Administrator. 05/29/2015 Order Download Order issued granting plaintiffs' motion to compel discovery, extend the deadline for fact discovery, and hold defendant's motion for summary judgment in abeyance pending completion of discovery and denying defendant's motion for entry of protective order. The federal district court for the Northern District of West Virginia ordered EPA to comply with discovery requests made by coal companies in their lawsuit seeking to compel EPA to undertake an evaluation of the effects on employment of administration and enforcement of the Clean Air Act. The court noted that “little meaningful discovery” had occurred even though EPA had already filed a motion for summary judgment. 03/27/2015 Memorandum Download Memorandum order issued denying motion to dismiss and motion to stay discovery. The court ruled that coal companies had standing to claim that EPA had failed to fulfill its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. The court said that the alleged injuries from the power industry’s discontinuance of the use of coal were fairly traceable to EPA actions, including EPA’s failure to conduct the employment evaluations. The court further found that such injuries would be redressable because conducting the evaluations could result in reversal of prior EPA actions. The court also found that the coal companies fell within the zone of interests protected by the Clean Air Act provision requiring the evaluations. In addition, the court held that the companies had procedural and informational standing. 10/24/2014 Order Download Order issued denying motion to clarify. The federal district court denied EPA’s motion to clarify its September decision denying EPA’s motion to dismiss a lawsuit brought under Section 321(a) of the Clean Air Act. The court said it believed that its September order “clearly set forth the bases for the ruling and that no further explanation is necessary.” 10/09/2014 Motion Download Motion filed by United States to clarify court's September 16, 2014 order. EPA filed a motion to clarify the court's order of September 16, 2014. In the motion, EPA said that it was “unable to discern … whether the Court was asserting jurisdiction for the failure to perform of a nondiscretionary duty under Section 304(a)(2) or for unreasonable delay under Section 304(a)” of the Clean Air Act. EPA said these were two separate and distinct causes of action subject to different standards of evaluation. 09/16/2014 Order Download Order issued denying motion to dismiss. The court denied EPA’s motion to dismiss. The court found that the absence of a “date-certain deadline” for conducting the evaluations required by Section 321(a) did not make EPA’s obligation to conduct them discretionary. The court therefore concluded that it had jurisdiction to hear the case. The court also rejected EPA’s request that it strike plaintiffs’ prayer for injunctive relief. The court noted that while there might be questions as to the scope of injunctive relief the court could grant, arguments regarding this issue were premature. 05/23/2014 Complaint Download Amended complaint filed. 03/24/2014 Complaint Download Complaint filed. Coal companies commenced a federal lawsuit seeking to compel EPA to undertake an evaluation pursuant to section 321 of the Clean Air Act of the effects of administration and enforcement of the Clean Air Act on employment. Plaintiffs contend that EPA “has continued to administer and enforce the Clean Air Act in a manner that is causing coal mines to close, costing hard-working Americans their jobs, and shifting employment away from areas rich in coal resources to areas with energy resources preferred by [EPA].” Plaintiffs seek an injunction barring EPA from promulgating new Clean Air Act regulations that affect the coal industry until the employment evaluation is completed. 01/21/2014 Notice of Intent to Sue Download Notice of intent to sue submitted. Characterizing EPA’s administration and enforcement of the Clean Air Act (CAA) over the past five years as a “war on coal,” Murray Energy Corporation and certain subsidiaries and affiliates sent a letter to EPA on January 21, 2014 notifying the agency of its intent to file a citizen suit challenging EPA’s failure to fulfill a nondiscretionary duty under section 321 of the CAA to conduct continuing evaluations of potential loss or shifts of employment that may result from administration or enforcement of the CAA. The letter described EPA actions, including the development of proposed regulations for greenhouse gas emissions from power plants, that place “immense pressure” on the electric generating sector and other industries that traditionally burn coal, and said that “EPA has taken these actions to discourage the use and production of coal without adequate evaluation and consideration of their implications for the jobs of many thousands of employees in the coal sector and many other dependent industries. This is the very reason why Congress enacted CAA § 321(a), which expressly requires EPA to continuously evaluate the employment effects of these Agency actions.” The letter cited the EPA Administrator’s responses to questions from members of Congress as indicating that EPA has never conducted the evaluation required by section 321 and that it is not likely to do so in the future without judicial intervention. -
In re McCarthy
Case Documents:
Filing Date Type File Action Taken Summary 12/09/2015 Order Download Fourth Circuit published rationale for issuance of writ of mandamus deposition of EPA Administrator. Fourth Circuit Issued Rationale for Barring Deposition of EPA Administrator. On December 8, 2015, the Fourth Circuit Court of Appeals issued an order setting forth its rationale for granting the United States Environmental Protection Agency’s (EPA’s) petition for writ of mandamus precluding the deposition of EPA Administrator Gina McCarthy in a case pending in district court in West Virginia. The case, brought by Murray Energy Corporation and its affiliates, alleges that EPA has failed to comply with Section 321(a) of the Clean Air Act, which provides that EPA shall conduct evaluation of job loss and employment shifts that may result from administration and enforcement of the Clean Air Act. The Fourth Circuit was not convinced by the district court’s finding that alleged conflicts between McCarthy’s testimony before Congress and EPA’s representations to the court constituted “extraordinary circumstances” warranting deposition of a high-ranking official. The Fourth Circuit saw no contradiction in EPA’s position that would support the extraordinary circumstance finding and also was not persuaded that there was no alternative to deposing McCarthy. The Fourth Circuit also disagreed with the district court’s finding that EPA’s “apparent refusal” to comply with Section 321(a) was prima facie evidence of wrongdoing. The Fourth Circuit said that there was no clear misconduct. 11/25/2015 Order Download Fourth Circuit issued a writ of mandamus directing the district court to enter a protective order precluding the deposition of EPA Administrator. Fourth Circuit Blocked Deposition of EPA Administrator in Coal Companies’ Jobs Study Lawsuit. On November 25, 2015, the Fourth Circuit Court of Appeals granted a petition for writ of mandamus by EPA Administrator Gina McCarthy to preclude Murray Energy Corporation (Murray Energy) from deposing her in its lawsuit seeking to compel EPA to undertake an evaluation of the Clean Air Act’s impacts on employment pursuant to Section 321(a) of the Clean Air Act. The Fourth Circuit indicated that a “reasoned exposition” of the basis for its order would follow “shortly.” 11/16/2015 Brief Download EPA supplemented its arguments in support of granting a writ of mandamus precluding deposition of Administrator after the district court denied EPA’s motions. 11/10/2015 Petition Download EPA sought writ of mandamus to preclude deposition of Administrator. -
In re McCarthy
Case Documents:
Filing Date Type File Action Taken Summary 07/09/2015 Order Download Order issued denying writ of mandamus. Supplemental brief filed by EPA. 06/12/2015 Petition Download Petition for writ of mandamus filed. After the district court denied reconsideration of the May 2015 discovery order, EPA filed a petition for writ of mandamus in the Fourth Circuit Court of Appeals, asking the appellate court to direct the district court to vacate the discovery order and disallow discovery. EPA said that this unusual relief was warranted because “Congress strictly limited the scope of judicial inquiry in nondiscretionary-duty suits like this one, and the extraordinarily broad discovery compelled by the district court has no reasonable prospect of unearthing evidence relevant to the ultimate disposition of this case.”