West Virginia Record

Monday, January 27, 2020

Judge denies bid to block deposition of EPA chief in coal case

By Chris Dickerson | Nov 13, 2015

Gina mccarthy
EPA Administrator Gina McCarthy

WHEELING – A federal judge has ruled that U.S. EPA Administrator Gina McCarthy will be deposed in a lawsuit about coal mining regulations despite a bid by the agency to block it.

On Nov. 12, Judge John Preston Bailey ruled that McCarthy’s involvement with Clean Air Act regulations means she is relevant enough to be deposed.

“By statute, the administrator is responsible for conducting the evaluations in question,” Bailey wrote. “She has personally been involved with discussions about Section 321(a).”

The EPA has filed a request to block McCarthy’s deposition, claiming its written regulations were enough to comply. At the heart of the case is estimated job losses that would be caused by the EPA’s Clean Air Act regulations that would affect the coal industry. Murray Energy Corp. and affiliated companies filed the lawsuit last year in District Court for the Northern District of West Virginia, arguing that the EPA doesn’t properly consider the job impact of its regulations before issuing them.

Murray has sued the EPA over its rules agenda, arguing that the agency doesn’t properly consider the job impact of its regulations before issuing them. It has petitioned to have McCarthy deposed in the case, something scheduled for later this month.

Bailey also said McCarthy has discussed the Clean Air Act and its provisions with lawmakers about the provision in the law and said the EPA never has done a job loss evaluation because it isn’t required.

“The plaintiffs are entitled to explore these divergent positions,” Bailey wrote.

In a statement, EPA spokeswoman Melissa Harrison said it is reviewing the order, but it disagrees with it.

“Murray Energy has not shown that she has unique knowledge essential to their case or that the information they seek is unavailable from other sources,” Harrison said. “Under well-settled case law, the deposition of high-ranking executive officials is barred absent extraordinary circumstances.”

In its filing to block McCarthy’s deposition, the EPA said it provided more than 130,000 pages of documents and depositions of “several mid-level agency officials” for the case.

McCarthy’s deposition was scheduled for later this month. But, the EPA now has until Dec. 4 to file a new appeal.

A dozen coal and energy companies filed the lawsuit last year claiming McCarthy 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 several 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 in 2013 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 last year alerting her to the EPA’s obligations under the Clean Air Act.

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.

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

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Organizations in this Story

Dinsmore & Shohl LLPU.S. Environmental Protection Agency (EPA)Squire Sanders and DempseySquire Patton Boggs