Yesterday, a federal district judge in West Virginia presiding over a challenge brought by Murray Energy Corp. held that Section 321(a) of the Clean Air Act requires EPA to consider impacts of its Clean Air Act regulations on the coal industry. Section 321(a) requires the Administrator to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”
The court determined that undertaking these evaluations is a “mandatory duty upon the EPA.” And, while EPA “may have the discretion as to the timing” of these evaluations, EPA cannot “categorically refuse to conduct any such evaluations,” as Murray Energy alleged is the case.
In reaching this conclusion, the court looked at the EPA’s history of conducting evaluations, including through the Economic Dislocation Early Warning System, which began in 1972. The court noted that while EPA discontinued these evaluations at some point, it had not claimed—until this case—that its inaction complied with Section 321(a). The court found that the most EPA does is “conduct proactive analysis of the employment effects of [its] rulemaking actions.” The court said this “is simply not what § 321(a) is about” and noted that EPA’s witness admitted the agency “is not investigating power plant and mine closures and worker dislocations resulting from the utility strategy on an ongoing basis.”
The court rejected EPA’s contention that Murray Energy lacked standing to pursue the action—i.e., that Murray had demonstrated an actual or threated injury traceable to EPA’s action that could be redressed by the court. Instead, the court concluded that Murray Energy’s allegations “that the actions of the EPA have had a coercive effect on the power generating industry, essentially forcing them to discontinue the use of coal” were sufficient to meet constitutional standards.
