Renewable Energy Update

Federal Judge Tells EPA It's Time to Obey the Law

January 13, 2017

By: M. Shane Harvey

As we have previously reported, Murray Energy is pursuing an action against EPA in federal court in in the Northern District of West Virginia arguing that EPA failed to discharge an obligation under Section 321(a) of the Clean Air Act to evaluate the job impacts of its Clean Air Act rules.

After rejecting numerous attempts by EPA to limit discovery, the district court (Judge Bailey) granted summary judgment to Murray Energy in October 2016 and ordered EPA to provide a plan and schedule for complying with Section 321(a).

Rather than comply, however, EPA responded that: (1) the district court was wrong; the time frame set by the court for compliance (two weeks) was too short; and that it would take EPA around two years to come up with “a methodology to use in an effort to begin to comply with Section 321(a).”

Predictably, the district court was not pleased.

In a stinging Final Order issued on January 11, 2017, the district court found that EPA’s response was “wholly insufficient, unacceptable, and unnecessary. It evidences continued hostility on the part of EPA to acceptance of the mission established by Congress.”

According to the district court, “EPA thinks it is bad to make worker dislocations known to the public and bad policy for regulators to look at worker dislocations in making decisions.” As the court explained:

EPA does not get to decide whether compliance with § 321(a) is good policy, or would lead to too may difficulties for the agency.  EPA can recommend amendments to Congress if it feels strongly enough, but EPA's clear reticence to comply coupled with 8 years of refusal to comply?even in the face of Congressional and public pressure?with the Clean Air Act justifies an injunction detailed enough to ensure compliance.  It is time for the EPA to recognize that Congress makes the law, and EPA must not only enforce the law, it must obey it.

While the district court felt it lacked the power to stay the Clean Air Act rules EPA has promulgated in violation of Section 321(a), the district court did issue an injunction requiring EPA to make detailed reports regarding potential job losses by express deadlines.

This article was authored by M. Shane Harvey, Jackson Kelly, PLLC.