Murray Energy Corp. v. Pruitt

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On November 3, the district court granted Murray Energy’s motion to amend the order of dismissal and dismissed the action without prejudice for want of jurisdiction.

Murray Energy moved in the federal district court for the Northern District of West Virginia to amend the order of dismissal with prejudice issued by the court on October 2, 2017. Murray Energy argued that the dismissal should have been without prejudice because the Fourth Circuit dismissed based on subject matter jurisdiction, not the merits of the case.

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On May 15, 2017, EPA submitted its initial filing in compliance with the order of the federal district court for the Northern District of West Virginia requiring EPA to prepare a study of the employment impacts of the Clean Air Act. EPA’s filing came six days after the Fourth Circuit Court of Appeals heard oral arguments in EPA’s appeal, which EPA hoped would moot its obligation to complete the work described in this initial compliance filing. EPA was required to file its employment evaluation by July 1 to meet the district court’s deadline. In the initial filing, EPA indicated that it had assembled a workgroup of 80 EPA employees to develop the evaluation and that it would use as guidance the Economic Dislocation Early Warning System (EDEWS), a program jointly administered by EPA and the U.S. Department of Labor in the 1970s that tracked information on facility closures for which environmental regulation was alleged to be a significant factor. EPA cautioned, however, that it had “serious concerns about the analytical challenges associated with facility-level evaluations generally” and believed that resuming EDEWS would result in enormous costs with little gain in reliable information. EPA indicated that time constraints would prevent it from gathering information on plant closures and employment reductions through state and local governments and the firms themselves and that it was instead undertaking “a significant data-gathering effort by utilizing publicly available information on facilities in the coal-mining and coal-fired-generation industries, compiling that information, and then conducting a qualitative assessment of the factors that may have contributed to actual or potential closures or reductions in employment.” Because of the limitations of facility-level analysis, EPA said it also would include sector-level overviews to provide context. To comply with the district court’s requirement that it adopt measures by December 2017 to continuously evaluate losses and shifts in employment, EPA said it was assembling another workgroup and developing a work plan that would involve development of a system to collect facility-level information, development of a process for compiling and evaluating the information, and determining how to make the information publicly available.

The district court for the Northern District of West Virginia only partially granted a joint motion to extend EPA's deadlines for complying with its order. The parties had asked for extensions of between three and four months for submission of the “comprehensive filing detailing the actions the agency is taking to comply,” the jobs study, and evidence of adoption of measures to ensure that loss and shifts in employment are continuously evaluated. The parties said additional time was necessary to allow EPA to brief new administration officials. The court granted a two-month extension to allow EPA additional time to complete the initial “comprehensive filing” requirement, but said that the change in administration did not warrant more time for preparation of the employment evaluation (which must be filed with the court by July 1, 2017) or for adoption of measures to continuous evaluate employment effects (evidence of which must be filed by the end of 2017).

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The court denied Murray Energy's motion for fees without prejudice to renew it after resolution of EPA’s appeal of the final order.

Two weeks after the court’s final order, Murray Energy filed a motion seeking approximately $3.9 million in fees under Clean Air Act Section 304(d). The fees sought included expert witness fees, attorney fees, and other disbursements.

The West Virginia environmental groups filed notice that they would appeal the denial of their motion to intervene.

Because the court had denied plaintiffs' request that it enjoin EPA from promulgating regulations until it complied with the court's orders, the court also denied as moot a motion to intervene by several West Virginia-based environmental organizations that had sought to resist an injunction on EPA rulemaking.

The federal district court for the Northern District of West Virginia issued its final order in Murray Energy Corporation v. McCarthy, the lawsuit in which Murray Energy and affiliated companies successfully sought to compel EPA to undertake evaluations of the Clean Air Act’s employment impacts. After the court ruled in October 2016 that EPA had not fulfilled its mandatory duty to undertake such evaluations, EPA proposed a plan under which it would begin by undertaking an approximately two-year consultation with its Science Advisory Board. The court’s final order called EPA’s plan “wholly insufficient, unacceptable, and unnecessary” and said that the plan “evidence[d] the continued hostility on the part of the EPA to acceptance of the mission established by Congress” in Section 321(a) of the Clean Air Act. The court ordered EPA to submit an evaluation of the coal industry and other entities affected by Clean Air Act regulations no later than July 1, 2017. The court directed that the evaluation include specific components, including identification of facilities at risk of closing or reducing their workforce, information about the number of employees potentially affected and communities impacted, identification of coal mines or coal-fired power generators that had closed or reduced employment since January 2009 and analysis of whether administration or enforcement of the Clean Air Act contributed to the closures and workforce reductions, and identification of subpopulations at particular risk of being affected. The court also directed EPA to submit evidence by December 31, 2017 that the Agency had adopted measures to continuously evaluate the loss and shifts in employment caused by implementation of the Clean Air Act. The court concluded, however, that it lacked jurisdiction to grant the plaintiffs’ request that it bar EPA from proposing or finalizing regulations that affect the coal industry until it complied with the court’s orders.

EPA filed a notice of appeal in the action in the federal district court for the Northern District of West Virginia in which Murray Energy Corporation and its subsidiaries won summary judgment requiring EPA to conduct evaluations of the Clean Air Act’s impacts on employment, including in the coal industry.

Murray Energy Corporation and the other plaintiffs objected to EPA’s compliance plan and schedule, describing it as “yet another in a long line of tactics to avoid timely recognition of the job losses caused by EPA’s war on coal.” The plaintiffs asked the court to order EPA to promptly comply with Section 321(a), to evaluate and report to the court “the job loss and shifts that may be attributable to EPA’s war on coal”; and to cease publication of new proposed and final rules “in furtherance of the war on coal” until it complied.

On October 31, 2016, EPA submitted its plan for complying with the order by the federal district court for the Northern District of West Virginia requiring EPA to conduct evaluations pursuant to Section 321(a) of the Clean Air Act of loss or shifts in employment that result from implementation of the Clean Air Act. EPA said it would first consult with its Science Advisory Board (Board) regarding the analytic tools and methodologies for the evaluations, a process that EPA estimated could take more than two years. EPA said it would then take approximately 90 days to consider the Board’s advice and set an evaluation schedule.

The federal district court for the Northern District of West Virginia ruled that the U.S. Environmental Protection Agency (EPA) had failed to fulfill its non-discretionary obligation under Section 321(a) of the Clean Air Act to conduct evaluations of loss or shifts in employment that might result from implementation of the Clean Air Act. The court again rejected EPA’s argument that the obligation was discretionary as well as the argument that the coal companies that brought the action did not have standing. The court also was not persuaded by EPA’s “new interpretation” of Section 321(a) pursuant to which EPA claimed it had complied with its requirements by preparing regulatory impact analyses and economic impact analyses as part of rulemaking processes, even though they were not prepared for the explicit purpose of complying with Section 321(a). The court said that EPA’s previous “consistent acknowledgement” that it had no employment evaluations “coupled with testimony from various experts that EPA’s claimed attempts do not comply” demonstrated that EPA had not fulfilled its duty. The court ordered EPA to file a plan and schedule for compliance within 14 days. The plan must specifically address how EPA will consider the effects of Clean Air Act regulation on the coal industry.

EPA filed its reply in support of its motion for summary judgment, reiterating its view that the case was ripe for adjudication and that a trial was not necessary. EPA argued that if the court found it had not performed a non-discretionary duty, the remedy should be limited to ordering EPA to fulfill its obligation—and that other relief sought by Murray Energy, including an injunction on new regulations, was barred as a matter of law.

Twelve states and one state agency submitted an amicus brief to the federal district court for the Northern District of West Virginia in support of Murray Energy Corporation and its affiliates in their lawsuit seeking to compel EPA to perform a study of the Clean Air Act’s impact on employment. The states, led by West Virginia, said their brief was intended to “highlight the unique challenges they face resulting from the job-loss information vacuum caused by EPA’s unlawful refusal to comply with Section 321,” the Clean Air Act provision that is the crux of the case. The states urged the court to deny EPA’s motion for summary judgment.

The Chamber of Commerce of the United States of America and the National Mining Association submitted an amicus curiae brief in support of the plaintiffs, arguing that EPA had a mandatory duty to conduct the employment analysis and that Murray Energy had standing to challenge EPA’s failure to do so.

Murray Energy Corporation and affiliated coal companies (Murray Energy) filed papers opposing EPA’s motion for summary judgment in Murray Energy’s action to compel EPA to undertake an evaluation of the impact of the Clean Air Act on employment. Murray Energy argued that EPA did not have discretion to ignore the duty to conduct such an evaluation and urged the court to reject EPA’s argument that it had fulfilled its obligation to conduct the employment evaluations. Murray Energy also disputed EPA’s claim that the plaintiffs lacked standing and asserted that the court had authority to issue an injunction to ensure compliance and to preserve the status quo pending compliance by enjoining enforcement activities and the approval of further regulations.

The federal district court for the Northern District of West Virginia continued to address discovery issues in the lawsuit brought by Murray Energy Corporation and subsidiaries (together, Murray Energy) alleging that the United States Environmental Protection Agency (EPA) failed to perform a mandated study of the Clean Air Act’s impact on employment. The trial had been scheduled to begin in July, but the court vacated the trial deadline and other deadlines in June and indicated that the deadlines would be rescheduled at a later date. On July 20, the court granted in part and denied in part a motion by Murray Energy to compel disclosure of certain documents. The court agreed with EPA that certain documents were protected by the deliberative process privilege, but directed that other documents be produced in whole or in part. The court also permitted Murray Energy to continue depositions of two EPA witnesses due to the late production of documents. A motion by EPA for summary judgment remained pending.

On July 5, 2016, the court granted EPA’s request that it restrict access to the transcript for a hearing held on June 29 during which documents stamped confidential were discussed. Murray Energy had objected to EPA’s motion.

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The federal district court for the Northern District of West Virginia denied a motion by EPA to disqualify or exclude a former EPA official from testifying in a lawsuit in which the coal company Murray Energy Corporation argues that EPA failed to fulfill its statutory obligation to study the Clean Air Act’s employment impacts. The court said that disqualification was a “drastic remedy” and that EPA had failed to sustain its burden of demonstrating that disqualification was warranted. The court stressed that the official had left EPA more than 10 years ago. The court said it could not discern any part of the official’s report that could be based on confidential information, and indicated there was no merit to the argument that the former official should be disqualified from serving as an expert witness adverse to EPA because he had once worked for the agency. The court also said that EPA’s argument that the former official lacked “scientific, technical or other specialized knowledge” was “ridiculous.” The court further concluded that policy objectives weighed in favor of allowing the former official to testify.

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On May 16, 2016, EPA filed a motion to disqualify or exclude the testimony of a former EPA Assistant Administrator for the Office of Air and Radiation in the administration of President George W. Bush. EPA said the former official’s testimony should be disqualified because EPA could not depose or cross-examine him without revealing confidential or privileged EPA information. Alternatively, EPA said that his testimony should be excluded because it included legal conclusions or was otherwise unreliable.

On May 2, 2016, EPA asked the federal district court for the Northern District of West Virginia to grant summary judgment in its favor in a lawsuit brought by Murray Energy Company and affiliated companies (Murray Energy) seeking to compel EPA to perform evaluations of the Clean Air Act’s impacts on employment. Murray Energy alleged that Section 321 of the Clean Air Act imposed a mandatory duty on EPA to conduct such evaluations. In its motion for summary judgment, EPA said that it had “expended millions of dollars of public funds to review and produce hundreds of thousands of documents and privilege logs over the course of tens of thousands of hours” in the lawsuit. EPA said that a trial—scheduled to start on July 19, 2016—was not warranted because Murray Energy’s claim should be decided as a matter of law. In particular, EPA said that summary judgment in its favor should be granted (1) because Section 321(a) did not establish a nondiscretionary duty enforceable through a citizen suit, (2) because the plaintiffs had not established standing, and (3) because EPA had in fact conducted the employment evaluations described in Section 321(a). Alternatively, EPA said that if the court determined that EPA had not satisfied its obligations under Section 321(a), the court should enter judgment against EPA and order EPA to perform the job impact evaluations “and nothing more.”

On February 1, 2016, Murray Energy withdrew its motion to modify the trial date, saying that Mr. Murray had been able to resolve the conflict.

On January 22, 2016, Murray Energy moved to modify the trial date to avoid a scheduling conflict with the Republican National Convention. The motion said that Robert E. Murray, Murray Energy Corporation’s chief executive officer and board chairman, who is a plaintiffs’ witness and client representative, was a member of the convention’s host committee and had commitments requiring him to be at the convention.

The federal district court for the Northern District of West Virginia set July 19, 2016 as the trial date for the lawsuit brought by Murray Energy Corporation and its affiliates (Murray Energy) in which they charge EPA with failing to comply with its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act.

The federal district court for the Northern District of West Virginia denied EPA’s motions for a protective order and to stay McCarthy’s deposition. The district court found that there were extraordinary circumstances justifying deposition of a high-ranking official because of the “divergent positions” taken by EPA with respect to whether it had undertaken the employment study pursuant to Section 321(a) of the Clean Air Act. The court found that McCarthy had personal knowledge of the facts and that her “apparent refusal” to comply with Section 321(a) provided “sufficient prima facie evidence of wrongdoing such that the plaintiffs will be able to probe her deliberative processes.” The district court also found that there was no viable alternative to the deposition of McCarthy.

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The federal district court for the Northern District of West Virginia ordered EPA to comply with discovery requests made by coal companies in their lawsuit seeking to compel EPA to undertake an evaluation of the effects on employment of administration and enforcement of the Clean Air Act. The court noted that “little meaningful discovery” had occurred even though EPA had already filed a motion for summary judgment.

The court ruled that coal companies had standing to claim that EPA had failed to fulfill its nondiscretionary obligation to conduct evaluations of potential losses or shifts in employment due to the administration and enforcement of the Clean Air Act. The court said that the alleged injuries from the power industry’s discontinuance of the use of coal were fairly traceable to EPA actions, including EPA’s failure to conduct the employment evaluations. The court further found that such injuries would be redressable because conducting the evaluations could result in reversal of prior EPA actions. The court also found that the coal companies fell within the zone of interests protected by the Clean Air Act provision requiring the evaluations. In addition, the court held that the companies had procedural and informational standing.

The federal district court denied EPA’s motion to clarify its September decision denying EPA’s motion to dismiss a lawsuit brought under Section 321(a) of the Clean Air Act. The court said it believed that its September order “clearly set forth the bases for the ruling and that no further explanation is necessary.”

EPA filed a motion to clarify the court's order of September 16, 2014. In the motion, EPA said that it was “unable to discern … whether the Court was asserting jurisdiction for the failure to perform of a nondiscretionary duty under Section 304(a)(2) or for unreasonable delay under Section 304(a)” of the Clean Air Act. EPA said these were two separate and distinct causes of action subject to different standards of evaluation.

The court denied EPA’s motion to dismiss. The court found that the absence of a “date-certain deadline” for conducting the evaluations required by Section 321(a) did not make EPA’s obligation to conduct them discretionary. The court therefore concluded that it had jurisdiction to hear the case. The court also rejected EPA’s request that it strike plaintiffs’ prayer for injunctive relief. The court noted that while there might be questions as to the scope of injunctive relief the court could grant, arguments regarding this issue were premature.

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Coal companies commenced a federal lawsuit seeking to compel EPA to undertake an evaluation pursuant to <a href="http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap85-subchapIII-sec7621.pdf">section 321</a> of the Clean Air Act of the effects of administration and enforcement of the Clean Air Act on employment. Plaintiffs contend that EPA “has continued to administer and enforce the Clean Air Act in a manner that is causing coal mines to close, costing hard-working Americans their jobs, and shifting employment away from areas rich in coal resources to areas with energy resources preferred by [EPA].” Plaintiffs seek an injunction barring EPA from promulgating new Clean Air Act regulations that affect the coal industry until the employment evaluation is completed.