As last reported in the Fall 2016 issue of The Climate Report, in March 2014, Murray Energy Corp. ("Murray Energy") and 11 of its subsidiaries sued EPA under the Clean Air Act ("CAA") citizen-suit provision (Section 304(a)(2)), alleging that EPA ignored its obligation to consider the consequences of CAA regulations on job losses and displacements in the coal industry. Murray Energy Corporation et al v. Administrator of EPA, No. 5:14-cv-00039 (N.D. W. Va.). Murray Energy alleged that EPA failed to comply with Section 321(a) of the CAA, which requires the EPA Administrator to "conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the CAA] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement."
In May 2017, EPA moved for summary judgment. EPA argued that Section 321(a) does not set forth a nondiscretionary duty enforceable through the CAA citizen-suit provision, and so the court lacked jurisdiction. In response, Murray Energy contended that EPA's argument had been rejected twice previously in the suit.
On October 17, 2016, the district court granted summary judgment in Murray Energy's favor. The court first held that Section 321(a) creates a nondiscretionary duty sufficient to give rise to Section 304(a)(2) jurisdiction, and that Murray Energy had standing to seek redress for its alleged injuries. The court also ruled in Murray Energy's favor on the merits, concluding that EPA had failed to satisfy its obligation under Section 321(a) to assess the actual, site-specific employment effects of CAA regulations.
EPA appealed the district court's decision to the United States Court of Appeals for the Fourth Circuit. Murray Energy Corp. et al v. Administrator of EPA, No. 16-2432. Following briefing and oral argument on May 9, 2017, the Fourth Circuit on June 29, 2017, held that the district court erred in adjudicating Murray Energy's suit under Section 304(a)(2). It thus vacated the district court's summary judgment order and remanded with instructions that the suit be dismissed for lack of jurisdiction.
In its opinion, the Fourth Circuit first noted that Section 304(a)(2) has been construed narrowly to authorize citizen suits only for "the enforcement of legally required acts or duties of a specific and discrete nature that preclude broad agency discretion." Against this backdrop, the court concluded that Section 321(a) imposes on EPA a broad, open-ended statutory mandate—rather than a specific and discrete duty—and so it is not amenable to review under Section 304(a)(2). The court reasoned that EPA has considerable discretion in managing its Section 321(a) duty, because Section 321(a) calls for "evaluations" of potential employment impacts on a "continuing" basis rather than a discrete time period. EPA, according to the court, has discretion to decide how to collect employment impact data, how to judge and examine this data, and how to manage these tasks on an ongoing basis. The court juxtaposed the continuous, complex process of evaluating potential employment effects with other CAA provisions that contained "discrete directives accompanied by specific guidance on matters of content, procedure, and timing."