Renewable Energy Update
EPA Seeks Order From 4th Circuit to Prohibit Discovery by Murray Energy-UPDATE: EPA Needs More Time to Locate and Review Documents
July 27, 2015
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 of July 10, 2015: 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.
UPDATE of July 27, 2015: By unopposed motion of July 23, 2015, EPA seeks to extend its deadlines for producing responsive documents. EPA claims that it has produced about 580 documents already, but that over 100 EPA employees have indicated they may have responsive documents in their possession. EPA claims that its electronically-stored information spans several different formats and that transferring legacy Lotus Notes information to its current system for review by DOJ lawyers has proven difficult.
This article was authored by Robert G. McLusky.