Last month, a federal district court judge excoriated EPA for its failure to take into account the economic impacts of its Clean Air rules as required under § 321 of the Clean Air Act (“CAA”), despite a court order demanding it to do so. § 321, a little known provision of the Act, requires EPA to conduct a continuing evaluation of job losses and plant closures resulting from Clean Air Act implementation or enforcement.
The opinion was issued in a citizen suit brought last fall by coal companies claiming that EPA had failed to perform a non-discretionary duty by not completing the analyses required by the statute. In October, the court granted summary judgment to the coal companies, finding that § 321 requires EPA to complete “contin[uous] evaluations” of the economic ramifications of the Agency’s entire collection of air regulations and ordering EPA to submit to the court a plan for complying with the provision.
The most recent decision was prompted by EPA’s response to the court’s order in which EPA essentially maintained that it was not subject to § 321 and even if it were, the court had not afforded the Agency enough time to comply.
In a 27-page opinion rejecting EPA’s response, the court took EPA to task, finding that the Agency’s failure to comply with § 321 evidenced a “continued hostility” to the provision. The court also noted that the Agency had previously maintained a system to monitor worker dislocations and plant closures which was mysteriously discontinued.
The court concluded by finding that “EPA does not get to decide whether compliance with § 321(a) is good policy, or would lead to too many difficulties for the agency.” The court further elaborated that “[i]t is time for the EPA to recognize that Congress makes the law, and EPA must not only enforce the law, it must obey it.” The recently published order states that EPA must conduct such an economic evaluation of the coal industry by July 2017, and implement policies for continuous economic evaluations by the end of the year. The court noted, however, that the language of § 321 precluded it from staying the implementation of any current air regulations based on EPA’s failure to comply. Following the publication of the order, industry groups are now seeking approximately $4 million in legal fees from the Agency for unnecessarily prolonging litigation.
The court’s order enforcing § 321 of the Clean Air Act will likely find a much more receptive audience with EPA leadership under the Trump Administration, which has promised to end the war on coal and restore and protect jobs. A copy of the order may be found here. For questions about the case or the recent order, please contact Margaret Campbell, Mack McGuffey, Melissa Trimble, or Rich Pepper