Under a recent summary judgment decision from a federal district judge, the EPA must continuously examine the effects that certain Clean Air Act (CAA) regulations have on employment in the coal industry specifically and other industries more broadly. This means the EPA will be subject to increased requirements before taking action under the CAA. The ruling also suggests that additional requirements could be imposed on the EPA under similar provisions in other environmental statutes, such as the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA.

Murray Energy’s Lawsuit Against the EPA

The ruling arises from a March 24, 2014 lawsuit filed by coal company Murray Energy and its affiliates and subsidiaries (Murray Energy) against the EPA in the District Court for the Northern District of West Virginia. The lawsuit alleged, and the court agreed, that the EPA failed to conduct any employment analyses required by Section 321(a) when administering and enforcing the CAA. Murray Energy wanted to force the EPA to examine whether its administration and enforcement of the CAA in recent years had led to job loss in the coal industry. It also sought to prevent the EPA from approving new regulations affecting the coal industry until it conducted a job analysis.

The lawsuit asserted that for five years the EPA had “wage[d] war” on the coal industry in a variety of ways, including the following:

1. Encouraging facilities to use other – non-coal – fuels;

2. Imposing expensive regulations on existing coal-burning facilities;

3. Conducting enforcement activities that discouraged operation of coal-burning facilities; and

4. Designing regulations that made it increasingly expensive or impractical to build new coal-burning facilities.

Murray Energy claimed this war on the coal industry causes facilities to close and costs people jobs.

How the CAA Requires an Analysis of Jobs

Section 321(a) of the CAA states that the EPA “shall conduct continuing evaluations of potential loss or shifts of employment” that could be caused by CAA administration or enforcement, including investigations of plant closures or job losses where needed. Congress enacted Section 321(a) in 1977 amendments to the CAA. Congress added Section 321(a) to address claims that enforcement of the CAA led to the shut-down of existing facilities, decisions not to construct new facilities, and loss of employment.

The Ruling

On October 17, 2016, a federal judge in West Virginia granted summary judgment in favor of Murray Energy. Ultimately, the court ordered the EPA to fully comply with Section 321(a). First, the court determined Section 321(a) imposes a mandatory – not discretionary – obligation on the EPA because the statute uses the word “shall.” The court also stated that Section 321(a) creates a “continuing” obligation.

Second, the court concluded Murray Energy had standing to sue. The injuries Murray Energy claimed – that the EPA’s tactics negatively impacted the coal generation industry – were “fairly traceable” to the EPA’s CAA actions and failure to analyze job impacts. Murray Energy also had procedural standing and informational standing because Murray Energy claimed the EPA did not follow statutory procedure and did not disclose information required by Section 321(a).

Last, the court rejected the EPA’s argument that prior evaluations – not specifically conducted under Section 321(a)) – qualified as Section 321(a) investigations. Based on the Congressional history of Section 321(a) and very similar sections in other environmental statutes, Congress intended that the EPA would constantly monitor the effects of its regulations on plant closures and job losses across industries. The EPA had also previously admitted that it was not conducting Section 321(a) investigations and would not do so in the future.

The court’s order means the EPA will now have to regularly monitor how its air regulations may impact employment. The EPA must file a plan and timeline for how it will examine employment under Section 321(a) – both on jobs overall and in the coal industry specifically – within two weeks. The court’s order also suggests courts could require the EPA to conduct similar employment evaluations for other environmental statutes with provisions like Section 321(a), including the Clean Water Act, the Toxic Substances Control Act, the Solid Waste Disposal Act, and CERCLA.