The U.S. Environmental Protection Agency (EPA) continues to resist a judge’s order requiring the agency to determine how many coal mining and coal power plant jobs its emissions regulations have eliminated.
The ruling by Judge John Preston Bailey of the U.S. District Court in Wheeling, West Virginia was handed down in a case in which coal producer Murray Energy sued EPA in 2014 alleging the agency failed to fulfill its duties for decades and account for the economic impact, including job losses, caused by its rules.
This is the second time Bailey has ruled against EPA in this case. In October 2016, citing Section 321(a) of the 1970 Clean Air Act, Bailey ruled the Clean Air Act requires EPA, on a continuous basis, to calculate job loses, including coal mine and power plant layoffs, caused by its regulations. Bailey gave EPA 14 days to submit a plan for assessing job impacts of its regulations on the coal industry.
‘Insufficient, Unacceptable’ Response
EPA missed the November deadline, but in a December response, former EPA Administrator Gina McCarty said it would take the agency up to two years to devise a methodology to comply with Bailey’s ruling. Bailey rejected EPA’s claims.
In his January 11 ruling, Bailey wrote, “This response is wholly insufficient, unacceptable, and unnecessary.”
Baily said EPA is required by law to analyze the economic impact on a continuing basis when enforcing the Clean Air Act and that McCarthy’s response “evidences the continued hostility on the part of the EPA to acceptance of the mission established by Congress.”
Bailey ordered EPA to identify mines and power plants suffering job loses or closures by EPA regulations during the Obama presidency by July 1, 2017, including identifying facilities at risk of closure or employment reductions. Bailey set a December 31 deadline for EPA to provide a plan for evaluating job losses that may result from enforcement of the Clean Air Act on an ongoing basis in the future.
‘Statute Is Unmistakably Clear’
Instead of EPA complying with Bailey’s order, the Justice Department in January asked the U.S. Court of Appeals for the Fourth Circuit to reverse Bailey’s order.
The appeal argues the jobs analysis is too heavy a burden for EPA to undertake, even though the Clean Air Act requires it.
Marlo Lewis Jr., a senior fellow at the Competitive Enterprise Institute, says the appeal is unjustified and EPA should have been complying with the law all along.
“It looks like there aren’t people in place yet [from the new Trump administration] at the Justice Department, and so there was no appointee there who could actually vet this and make sure there was an appropriate change in policy,” Lewis said. “Basically, what the Justice department has done is to continue the Obama administration’s illegal policy, which is simply indefensible.
“EPA claimed it would take two years to set up protocols to measure the job impacts of these regulations, so if that were true, why didn’t they start doing this as soon as Murray challenged EPA on this?” said Murray. “The statute is unmistakably clear.”
Kenneth Artz ([email protected]) writes from Dallas, Texas.