Federal judge orders EPA to assess job losses from Clean Air Act actions

Ohio-based coal producer Murray Energy on Oct. 17 celebrated a victory in a federal lawsuit against the U.S. Environmental Protection Agency, with a judge ruling on summary judgment that the agency failed to comply with Section 321(a) of the Clean Air Act of 1971, as amended, related to calculating job losses due to its actions.

The Clean Air Act, clearly requires the EPA to continuously consider the job losses and displacements caused by its issuance of regulations, said the coal company.

Robert E. Murray, Murray Energy’s Chairman, President, and Chief Executive Officer said: “This is a great day for coal miners in the United States, and for all citizens who rely on low-cost electricity in America. We will continue to vigorously pursue this lawsuit, and all of our litigation initiatives, in order to protect the lives and livelihoods of coal miners and their families, to defend the rule of law, and to preserve reliable and low cost electricity in our Country.”

Murray Energy has several lawsuits ongoing against EPA, including one of many filed against the CO2-reducing Clean Power Plan, which is currently under review at the federal appeals court level.

“At least 411 coal-fired power generating units in America have been closed or identified for closure by the Obama EPA, which is a loss of 101,000 megawatts of lowest cost electric power available across the Country,” said Murray. “Further, tens of thousands of coal miners have been put out of work, and their families are suffering. We are fighting to protect these workers, who only want to work in honor and dignity.”

“This is just one of several actions that we have undertaken to protect the livelihoods of coal miners and their families and to preserve low-cost electricity in our Country,” said Gary M. Broadbent, Assistant General Counsel and Media Director for Murray Energy. “We have been successful in obtaining a Nationwide stay of the so-called Clean Power Plan, and we are vigorously pursuing all six (6) of our lawsuits against the Obama EPA.”

The ruling in question came on Oct. 17 out of the U.S. District Court for the Northern District of West Virginia from Judge John Preston Bailey. The judge gave EPA 14 days to come back with a plan and schedule to comply with his order.

This lawsuit, filed in March 2014, turned on  various issues. For one thing, EPA argued that the Murray Energy subsidiaries in West Virginia that brought this suit have no standing to file it. But the judge said these companies employ thousands of people and EPA’s actions have reduced employment in the coal industry. EPA argued there is no evidence about job losses, but the judge said that is in part due to EPA’s failure to evaluate those job losses as as required by the Clean Air Act. The judge also dismissed an EPA claim that coal markets are so “global” that no particular injury from EPA’s actions is traceable.

EPA also argued that Murray Energy has gotten bigger in recent years, so where’s the harm. Murray Energy bought its mines in northern West Virginin earlier this decade from CONSOL Energy. But the judge said “EPA does not need to a kill a company to harm it.” The judge pointed to Murray Energy testimony saying that it had to grow, including through the deal with CONSOL, to survive in a shrinking coal industry.

The judge noted that EPA being forced to issue figures about job losses is not an academic exercise, since it might convince Congress, the EPA itself or the American public to ease any EPA regulations that are causing those losses.

Another EPA argument was that a scattered series of economic evaluations it did outside of this particular section of the Clean Air Act meets the standard of evaluating job losses. But the judge said those documents were generated outside the statute, and are either too vague or too old to be considered a fair evaluation of job losses under recent EPA regulations. He particularly cited EPA’s own admission that the documents really didn’t look at coal-fired power plant closures due to EPA regulations.

The judge wrote: “EPA cannot redefine statutes to avoid complying with them. Nor can EPA render them superfluous or contrary to their original purpose by simply defining them to be.”

Two GOP leaders cheer the court’s decision

U.S. Sen. Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works (EPW) Committee, and U.S. Sen. Shelley Moore Capito (R-W.Va.), chairwoman of the EPW’s Clean Air and Nuclear Safety Subcommittee, on Oct. 19 released a statement applauding the decision.

“This decision from the West Virginia federal district court is long overdue,” Inhofe said. “Despite clear requirements in the Clean Air Act, the EPA has failed to conduct analyses of how it’s unilateral regulations are affecting businesses and hard-working Americans across the country. Given that the EPA under this administration has greatly increased the volume of job-killing regulations, this court decision is a welcome and necessary step to protecting American jobs. I have worked to legislatively hold EPA accountable to the law, and I will continue to closely monitor the agency to ensure this review is done right.”

“For years, I have called on EPA to follow the law and consider the economic impacts of its regulations,” Capito said. “EPA has gone to great lengths to avoid the concerns of those most affected by its far-reaching regulations, crafting policies that fail to consider true economic costs like the thousands of jobs that have been lost throughout West Virginia. I’m pleased that Judge Bailey has ordered EPA to finally start the process of considering those impacts.”

They said prior developments related to this jobs question were:

  • In March 2014, Sen. Inhofe and 30 co-sponsors introduced S. 2161, the EPA Employment Impact Analysis Act, a bill that would prohibit the EPA from finalizing any major regulation until the agency analyzes the economic impact of its current air regulations as required under Section 321(a) of the Clean Air Act.
  • In March 2015, Sen. Capito held an EPW field hearing in Beckley, West Virginia, entitled, “Hearing to Examine Impacts of EPA’s Carbon Regulations in Coal-dependent West Virginia.” 
  • In June 2015, Sen. Capito held an EPW Subcommittee on Clean Air and Nuclear Safety hearing entitled, “The Impacts of EPA’s proposed Carbon Regulations on Energy Costs for American Businesses, Rural Communities and Families, and a legislative hearing on S. 1324.”
  • On Feb. 3, Sen. Inhofe sponsored S. Amdt. 3008 to S. 2012, The Energy Policy Modernization Act of 2015. This amendment would prohibit EPA from issuing any proposed or final rule under the Clean Air Act until EPA improves certain employment analyses under the Act.
  • On Oct. 5, Sen. Capito held an EPW Subcommittee on Clean Air and Nuclear Safety field hearing in Logan West, Virginia, entitled, “Examining the Local Impacts of EPA’s Climate Regulations.”
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.