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Murray Energy Corp. v. Administrator of Environmental Protection Agency

United States Court of Appeals, Fourth Circuit

June 29, 2017

MURRAY ENERGY CORPORATION; MURRAY AMERICAN ENERGY, INC.; THE AMERICAN COAL COMPANY; AMERICAN ENERGY CORPORATION; THE HARRISON COUNTY COAL COMPANY; KENAMERICAN RESOURCES, INC.; THE MARION COUNTY COAL COMPANY; THE MARSHALL COUNTY COAL COMPANY; THE MONONGALIA COUNTY COAL COMPANY; OHIOAMERICAN ENERGY, INC.; THE OHIO COUNTY COAL COMPANY; UTAHAMERICAN ENERGY, INC., Plaintiffs - Appellees,
v.
ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant, and MON VALLEY CLEAN AIR COALITION; OHIO VALLEY ENVIRONMENTAL COALITION; KEEPER OF THE MOUNTAINS FOUNDATION, Movants. MURRAY ENERGY CORPORATION; MURRAY AMERICAN ENERGY, INC.; AMERICAN COAL COMPANY; AMERICAN ENERGY CORPORATION; HARRISON COUNTY COAL COMPANY; KENAMERICAN RESOURCES, INC.; MARION COUNTY COAL COMPANY; MARSHALL COUNTY COAL COMPANY; MONONGALIA COUNTY COAL COMPANY; OHIOAMERICAN ENERGY, INC.; OHIO COUNTY COAL COMPANY; UTAHAMERICAN ENERGY, INC., Plaintiffs - Appellees,
v.
THE ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee,
v.
KEEPER OF THE MOUNTAINS FOUNDATION; MON VALLEY CLEAN AIR COALITION; OHIO VALLEY ENVIRONMENTAL COALITION, Movants - Appellants. CAUSE OF ACTION INSTITUTE; STATE OF WEST VIRGINIA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF UTAH; STATE OF WISCONSIN; STATE OF WYOMING, Amici Supporting Appellees. MURRAY ENERGY CORPORATION; MURRAY AMERICAN ENERGY, INC.; AMERICAN COAL COMPANY; AMERICAN ENERGY CORPORATION; HARRISON COUNTY COAL COMPANY; KENAMERICAN RESOURCES, INC.; MARION COUNTY COAL COMPANY; MARSHALL COUNTY COAL COMPANY; MONONGALIA COUNTY COAL COMPANY; OHIOAMERICAN ENERGY, INC.; OHIO COUNTY COAL COMPANY; UTAHAMERICAN ENERGY, INC., Plaintiffs - Appellees,
v.
THE ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellant,
v.
MON VALLEY CLEAN AIR COALITION; KEEPER OF THE MOUNTAINS FOUNDATION; OHIO VALLEY ENVIRONMENTAL COALITION, Movants. CAUSE OF ACTION INSTITUTE; STATE OF WEST VIRGINIA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF GEORGIA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF OHIO; STATE OF OKLAHOMA; STATE OF SOUTH CAROLINA; STATE OF TEXAS; STATE OF UTAH; STATE OF WISCONSIN; STATE OF WYOMING, Amici Supporting Appellees.

          Argued: May 9, 2017

          Appeals from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:14-cv-00039-JPB)

         ARGUED:

          Matthew Littleton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; William V. DePaulo, Charleston, West Virginia, for Appellants.

          John Lazzaretti, SQUIRE PATTON BOGGS (US) LLP, Cleveland, Ohio, for Appellees.

         ON BRIEF:

          Gautam Srinivasan, Matthew C. Marks, Air and Radiation Law Office, Office of General Counsel, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.; Jeffrey H. Wood, Acting Assistant Attorney General, Jennifer Scheller Neumann, Patrick R. Jacobi, Richard Gladstein, Laura J.S. Brown, Sonya Shea, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant/Cross-Appellee United States Environmental Protection Agency.

          Geoffrey K. Barnes, Robert D. Cheren, Danelle M. Gagliardi, Robert B. McCaleb, SQUIRE PATTON BOGGS (US) LLP, Cleveland, Ohio, for Appellees.

          Joshua N. Schopf, Eric R. Bolinder, CAUSE OF ACTION INSTITUTE, Washington, D.C., for Amicus Cause of Action Institute.

          Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Erica N. Peterson, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Amici State of West Virginia, State of Arizona, State of Arkansas, State of Georgia, State of Kansas, State of Louisiana, State of Michigan, State of Nebraska, State of Nevada, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, State of Utah, State of Wisconsin, and State of Wyoming.

          Before DIAZ, FLOYD, and THACKER, Circuit Judges.

          FLOYD, Circuit Judge

         In this case, we consider the bounds of a federal court's authority under the Clean Air Act (CAA) to correct an alleged failure by the U.S. Environmental Protection Agency (EPA) to perform a non-discretionary, CAA-based act or duty. See 42 U.S.C. § 7604(a)(2). The precise issue before us is whether this authority extends to review of the EPA's management of its continuous duty to evaluate the potential employment impact of CAA administration and enforcement. See 42 U.S.C. § 7621(a). We hold that it does not.

         I.

         In 1977, after extensive public debate about the effects of the CAA's environmental rules on employment, Congress enacted Section 321 of the CAA as a mechanism for reviewing those effects. See H.R. Rep. No. 95-294, at 316-18 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1395-97.

         At issue in this case is Section 321(a) of the CAA, 42 U.S.C. § 7621(a), which directs the EPA to continuously evaluate the potential employment impact of CAA administration and enforcement. Section 321(a) provides:

The [EPA] Administrator shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this chapter and applicable implementation plans, including where appropriate, investigating threatened plant closures or ...

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