Special Topics in Environmental Management

4th Circuit Sides with EPA on Jobs Analysis Requirement

The impact of EPA’s Clean Power Plan and other major Clean Air Act (CAA) actions on jobs in the coal mining industry was the subject of a suit by Murray Energy Corporation and others, which asserted that the Agency did not meet its nondiscretionary duty under CAA Section 321(a) to evaluate what effects those actions have on employment.

In October 2016, a U.S. District Court judge found in favor of the plaintiffs and ordered the Agency to file a plan and schedule to meet its Section 321(a) obligation. The EPA did file a plan and schedule, which the district court rejected and, subsequently, ordered the Agency to follow a remedial plan and schedule the district court itself devised. The EPA appealed the ruling—both the finding that it had failed to meet its nondiscretionary duty and the remedial ruling—to the U.S. Court of Appeals for the 4th Circuit. On June 29, 2017, a 4th Circuit panel found that the district court had misinterpreted Section 321(a), found in favor of the EPA, and ordered the case dismissed.

Section 321(a) Evaluations

The core of the case is in the specific language of Section 321(a), which states:

“The [EPA] Administrator shall 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.”

In defending itself against the charge that it did not meet the “continuing evaluation” obligation, the Agency told the courts that it had developed 64 regulatory impact analyses, economic impact analyses, white papers, and other reports that collectively demonstrated compliance with Section 321(a) insofar as the Agency’s actions were affecting employment. But the district court responded that these documents did not comply with the section because they did not assess the actual, site-specific employment effects of CAA implementation.

No Deadline

But according to the 4th Circuit panel, the statutory language of Section 321(a) does not impose on the EPA the kind of duty the district court found in the section. The panel focused on the phrase “continuing evaluation,” which implies a “a broad, open-ended statutory mandate” that demands “the exercise of agency judgment.” Moreover, the statutory language covers all CAA actions—in the panel’s words, “the entire set of actions administering and enforcing the CAA.”

“Perhaps most importantly, the required evaluations are not confined to a discrete time period, but instead are to be conducted on a continuing basis,” said the panel. “The open-ended nature of Section 321(a)’s command is further confirmed by what the statute does not say. Section 321(a) calls for evaluations without, for the most part, specifying guidelines and procedures relevant to those evaluations. Furthermore, Section 321(a) establishes no start-dates, deadlines, or any other time-related instructions to guide the EPA’s continuous evaluation efforts.”

Considerable Discretion

“The EPA is thus left with considerable discretion in managing its section 321(a) duty,” concluded the panel. “The agency gets to decide how to collect a broad set of employment impact data, how to judge and examine this extensive data, and how to manage these tasks on an ongoing basis. A court is ill-equipped to supervise this continuous, complex process.”

The panel backed up this view by noting that other sections of the CAA do have discrete directives accompanied by specific guidance on matters of content, procedure, and timing. “Section 321(a) fails to offer such clear instructions that could serve as a solid basis for judicial review,” said the panel.

Accordingly, the panel vacated the district court’s opinion and ordered it to dismiss Murray’s suit.

The opinion in Murray Energy Corp. et al. v. EPA is here.