Lawsuit Over Potential Job Losses From Clean Air Rules Allowed to Continue

By Andrea Vittorio

March 30 — A federal court has rejected an Environmental Protection Agency request to dismiss a lawsuit from coal companies alleging that the agency failed to review possible jobs losses from its proposed carbon dioxide performance standards for power plants and other air pollution rules.

Murray Energy Corp. and affiliated companies filed the lawsuit a year ago to compel the EPA to conduct the jobs impact review required for its regulations under Section 321 of the Clean Air Act, claiming that they are being financially harmed by the agency's failure to do so.

The agency has tried twice to get the case dismissed, first arguing that the U.S. District Court for the Northern District of West Virginia lacked subject matter jurisdiction to hear the case. That request was denied.

The EPA later argued that the companies lacked standing to bring their lawsuit in part because they are not affected by the agency's failure to conduct the jobs review and many of the rules cited by the company as needing a jobs review regulated power plants and not coal mines.

But the court disagreed, saying in a March 27 order that the coal companies have shown injuries, in the form of a reduced market for coal, that are “fairly traceable” to the actions of the EPA and those injuries are redressable, meaning if the court were to require the EPA to conduct a jobs review, the information could convince the EPA, Congress and/or the American public to rethink the regulations.

‘Zone of Interests.'

The EPA had also argued that the law's provision wasn't intended to protect the coal companies' interests.

Judge John Preston Bailey said, however, that the coal companies do “fall within the zone of interests” protected by the Clean Air Act because one purpose of the act is “to protect industries, employers and employees from the untoward effects of prior EPA actions.”

“As such employers, the plaintiffs clearly fall within that zone,” Bailey wrote.

The judge also agreed with the coal companies' assertion of informational standing and procedural standing.

John Lazzaretti, an attorney for Murray Energy, told Bloomberg BNA March 30 that “we’re very pleased with the opinion,” adding that he hopes “we can focus on the merits of the case” now that the agency's latest request to dismiss it has been denied.

Murray Energy is asking the court to prevent the EPA from issuing new regulations or enforcing certain existing rules affecting the coal industry until after a jobs evaluation is completed.

The case is scheduled to go to trial in January 2016. Justice Department attorneys representing the EPA did not return a request for comment.

To contact the reporter on this story: Andrea Vittorio in Washington at avittorio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The court's memorandum order in Murray Energy Corp. v. McCarthy is available at http://www.bloomberglaw.com/public/document/Murray_Energy_Corporation_et_al_v_Administrator_of_Environmental_/7.