By David Schultz

May 10, 2017 - A panel of federal appeals court judges appeared skeptical of a lower court’s decision that would force the EPA to conduct an analysis of how all of its air and climate regulations affect coal industry employment.

The three-judge panel, all of whom were appointed to the U.S. Court of Appeals for the Fourth Circuit by President Barack Obama, questioned whether the coal companies seeking the analysis even had the standing to bring it in the first place ( Murray Energy Corp. v. EPA, 4th Cir., No. 16-2432, oral arguments, 5/9/17 ).

The judges also questioned during May 9 oral arguments the legal analysis of the lower court judge who ruled in favor of the plaintiffs, a coalition of coal mining companies led by Murray Energy Corp.

Judge Stephanie Thacker asked whether it was appropriate for the district court judge, John Preston Bailey of the Northern District of West Virginia, to state twice in his rulings that the Environmental Protection Agency was waging a “war on coal.”

Jobs Analysis

At the heart of this case is a provision of the Clean Air Act that requires the EPA to perform “continuing evaluations of potential loss or shifts of employment” that may result from the agency’s implementation of the statute.

John Lazzaretti, a Squire Patton Boggs (U.S.) LLP attorney representing Murray, argued that his client needs this information for a number of reasons. It can use data on any future coal-sector job losses for its own financial planning, to inform its employees whose jobs may be in danger or to enhance its ability to lobby on this issue, he said.

Direct Injury?

However, the judges seemed unpersuaded by this line of argument. They brought up the fact that the Clean Air Act clause in question does not require the EPA to publish its jobs analysis, so there’s no guarantee Murray would even be able to access the information if the court forced the EPA to produce it.

They also pointed out that, even if the company could access it, the clause explicitly states that simply conducting the analysis doesn’t require the EPA to change any of its regulations, so the ultimate effect on the coal industry could be minimal.

“I still don’t understand how your client has a direct injury,” Thacker said to Lazzaretti.

Robert Cheren, another Squire Patton Boggs attorney representing Murray, told Bloomberg BNA that the oral argument never touched on whether or not the EPA is actually in compliance with this part of the Clean Air Act.

“I’m not surprised it didn’t get to the merits,” he said after the arguments. “The merits are so clear: they’re not in compliance.”

Court’s Authority

Murray sued the EPA in a lower court in 2014, arguing that the agency had been ignoring this jobs analysis requirement for years. Bailey not only agreed with Murray, but also set a deadline for the agency to submit its evaluation of job losses in the coal and energy sector by July 1.

Matthew Littleton, a Justice Department attorney representing the EPA, said during the arguments that Bailey overstepped the court’s authority by forcing the agency to take these specific actions in response to a requirement that is, he argued, fundamentally discretionary.

“The courts are not set up to manage the agency’s day-to-day operations,” he said.

Littleton also asked the appeals judges to rule as quickly as possible to give the EPA clarity on whether it will need to meet Bailey’s July 1 deadline.