Coal companies claim EPA boss not doing her job

WHEELING – A dozen coal and energy companies have filed a federal lawsuit claiming the the administrator of the Environmental Protection Agency is not doing her job correctly in regards to the Clean Air Act.

The companies filed the lawsuit March 24 in U.S. District Court in Wheeling, claiming Gina McCarthy, as administrator of the EPA, is required to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of (the Clean Air Act) and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”

The plaintiffs are Murray Energy Company, Murray American Energy Inc., The American Coal Corporation, The Harrison County Coal Company, KenAmerican Resources Inc., The Marion County Coal Company, The Marshall County Coal Copmany, The Monongalia County Coal Company, OhioAmerican Energy Inc., The Ohio County Coal Company and UtahAmerican Energy Inc.

The companies claim McCarthy has not taken such actions and, in fact, has enforced 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 the Agency.”

The plaintiffs claim the “continued pressure” placed on the coal industry by the EPA “will irreparably harm plaintiffs if allowed to continue unchecked.” They seek a determination that McCarthy’s failure to perform such actions required by the Clean Air Act violates the act itself. They also seek an order requiring her to take the actions and an injunction barring McCarthy from “promulgating new regulations impacting the coal industry before completing the acts required by the CAA.”

In the complaint, the companies say the EPA has waged a war on coal for the last five years “in a manner that places immense pressure on the electric generating sector – and other industries that traditionally burn coal – to reduce their consumption of coal.”

Those actions include encouraging facilities to switch from coal to other fuels, imposing costly regulations that have compelled or incentivized coal-burning facilities to shut down, engaging in enforcement that discourages the repair and continued operations of existing coal-burning facilities and developing regulations and guidance that will make it more costly and possibly impractical for new coal-burning facilities to be built.

The companies also claim the EPA’s actions in recent years have forced many coal-fired power plants to idle, shut down or convert to other fuels. That includes American Electric Power permanently retiring five coal-fired power plants in West Virginia, Virginia and Ohio as well as retiring generating units at seven other facilities in Kentucky, Virginia, Ohio and Texas. First Energy shut down 11 coal-fired plants in West Virginia, Ohio, Pennsylvania and Maryland citing EPA regulations. Georgia Power decertified two coal-fired plants last year for the same reasons.

“Since 2010 alone, it has been estimated that 330 coal-fired electric generating unites across the nation have been or are retiring or converting to other fuels because of EPA’s regulations and enforcement activities,” the complaint states. “These retirements and conversions, caused in whole or in part by EPA’s administration and enforcement of the Clean Air Act, have had a direct and significant impact on the market for coal.”

The companies say coal production in central Appalachia is down about 43 percent from 2008 levels. In the complaint, they list several mine closures, job cuts.

“In February 2014, it was reported that national coal mine employment has dropped nearly 20 percent in the past two years, from a high of about 94,000 jobs in the fourth quarter of 2011 to about 77,000 people today,” the complaint states. “In total, the administrator’s administration and enforcement of the Clean Air Act has caused or contributed to the loss of tens of thousands of coal mining jobs over the past five years.”

The plaintiffs say McCarthy repeatedly refused to acknowledge the need or her obligation to evaluate these job losses.

“The administrator has repeated stated … that the EPA does not and will not evaluate the employment impacts of its regulatory actions,” the complaint states.

The plaintiffs cite a 2009 letter from McCarthy, who then was Assistant Administrator to Lisa Jackson, saying “there was no statutory requirement or purpose for conducting economic analysis” and that the EPA has not interpreted the Clean Air Act “to require EPA to conduct employment investigations in taking regulatory actions.”

She echoed similar comments at her Senate confirmation hearings last year and at recent Senate committee hearings, according to the companies.

The companies also note they sent a notice letter to McCarthy in January alerting her to the EPA’s obligations under the Clean Air Act. She has yet to respond to that letter, they say.

The plaintiff companies say they employ more than 7,200 people and depend on a domestic coal market for their livelihood and the livelihoods of their employees. They ask the court to declare McCarthy’s refusal to conduct evaluations of employment effects a violation of the Clean Air Act. They also want the court to order McCarthy to evaluate whether EPA actions have caused job losses or shifts in the coal industry and to enjoin her from approving more regulations that would affect the coal industry.

The companies also seek court costs, including attorney fees. They are represented by Geoffrey K. Barnes, J. Van Carson, John Lazzaretti of Squire Sanders (US) LLP of Cleveland, John E. Jevicky of Dinsmore & Shohl in Cincinnati and Jacob A. Manning of Dinsmore in Wheeling.

The case has been assigned to Chief Judge John Preston Bailey.

U.S. District Court, Northern District of West Virginia case number 5:14-cv-39