Judge orders EPA’s McCarthy to provide deposition in coal company lawsuit

Overriding the objections of the U.S. Environmental Protection Agency, a judge in the U.S. District Court for the Northern District of West Virginia ruled Nov. 12 that EPA Administrator Gina McCarthy has to give a deposition in a March 2014 lawsuit filed by coal producer Murray Energy about whether the agency adequately looked at job losses when writing Clean Air Act rules.

Murray Energy and subsidiaries are seeking declaratory and injunctive relief for the EPA’s alleged failure to perform its duties to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the Clean Air Act] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”

The plaintiffs contend that the EPA’s enforcement of the Clean Air Act, combined with the EPA’s refusal “to evaluate the impact that its actions are having on the American coal industry and the hundreds of thousands of people it directly or indirectly employs” is irreparably harming the plaintiffs. In September 2014, this court found, as a matter of law, that the EPA had a non-discretionary duty to undertake an ongoing evaluation of job losses and that this court has subject matter jurisdiction to hear the case.

The plaintiffs had filed a notice setting the deposition of McCarthy for Nov. 24, leading to the EPA’s motion to preclude the deposition. The agency offered two arguments: that depositions of senior government officials, such as McCarthy, are barred absent extraordinary circumstances; and that the plaintiffs have not established extraordinary circumstances in this case.

In ordering her deposition, Judge John Preston Bailey said McCarthy has not delegated the responsibility to look at job losses to anyone else within the EPA. She has issued no instructions, orders, or guidance for subordinates to comply with the applicable statute, called Section 321(a), or ensure that others do so.

The judge also noted in her communications with Congress, McCarthy has discussed 321(a). In a letter to Senator Orrin Hatch and other senators dated Oct. 26, 2009, McCarthy, then Assistant Administrator, responding to a request for the results of continuing Section 321(a) evaluation of potential loss or shift of employment which may result from the suite of regulations the U.S. EPA had proposed or finalized, stated that “EPA has not conducted a section 321 investigation of its greenhouse gas actions.”

Clean Air Act section 321 authorizes the EPA administrator to investigate, report and make recommendations regarding concerns raised by employers or employees that requirements under the Clean Air Act will adversely affect employment. This section was designed to provide individual employees whose job was threatened or lost allegedly due to environmental regulations with a mechanism to have EPA investigate those allegations.

The judge wrote: “Finally, in the United States’ Response to Plaintiffs’ Second Set of Discovery Requests, the EPA states that ‘the United States has conceded both that ‘it did not interpret Section 321(a) as imposing a non-discretionary duty until this Court so held on September 16, 2014′ and that ‘none of the documents upon which it relies to demonstrate its performance of the duty in Section 321(a) were prepared explicitly for that purpose or labeled as Section 321(a) evaluations.’ The fair reading of these statements, many of which were made by Administrator McCarthy, is that the EPA has never made any evaluations of job losses under § 321(a). This is directly contrary to the position of the EPA in this case. In its Memorandum in Support of the United States’ Motion for Summary Judgment, the EPA states: ‘EPA is entitled to summary judgment because it has conducted ‘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,’ as required by Section 321(a) of the Clean Air Act.’ The plaintiffs are entitled to explore these divergent positions.”

The judge added: “Finally, this Court finds that there is no viable alternative to the deposition of the Administrator. With respect to the Motion to Stay, this Court will order that the deposition of Ms. McCarthy may not be taken prior to December 4, 2015.”

Ohio-based Murray Energy is a major coal producer in several states, including in northern West Virginia through several longwall-equipped mines it acquired in late 2013 from CONSOL Energy.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.