Holding the EPA to Account
For 45 years, federal law has made protecting the environment a priority under the National Environmental Policy Act by mandating that the consideration of environmental impacts be considered as part of every federal action. During much of the same time period, Congress directed the Environmental Protection Agency to evaluate the potential job losses and shifts in employment caused by environmental regulations. Yet EPA has refused to provide Congress with the information needed to address impacts ranging from industries being shuttered, to the loss of tens of thousands of jobs and communities disrupted.
Those days of inaction may be over. A federal trial court in West Virginia, in a case called Murray Energy Corporation v. EPA, recently found that EPA failed or refused to implement a statutory requirement to continuously evaluate job losses and shifts in employment caused by its regulations. The court ordered EPA to fully comply with the law. The court further found that due to the impact of its regulations on our economy, and the undisputed widespread employment effects suffered by the coal industry, it would be an abuse of discretion for EPA to refuse to conduct the job loss impacts on the coal industry resulting from its regulations.
In reaching its decision, the court heard testimony, undertook an exhaustive review of legislative history, examined the multiple congressional oversight hearings and the many demands from Congress for EPA to implement the job loss evaluations, as well as commitments made by EPA to Congress. The court also reviewed responses to Freedom of Information requests in which EPA admitted it never undertook any job loss evaluations.
But the most striking part of the court’s examination of legislative and regulatory activity is how much the political process has changed. In 1972, Congress was being told that jobs were being lost due to over-reaching regulations — just like today. Under a bipartisan compromise, Congress directed EPA to evaluate the impact of its regulations on jobs so that it could understand the scope of the problem. Congress wanted information. But Congress did not get that information.
So why for almost four decades did EPA refuse to provide Congress with the employment impacts information it needed to determine whether regulations are harming workers?
The answer is embedded in the vast differences in how EPA gives priority to its environmental mission over the low priority it gives to evaluating job losses.
When sued by an environmental advocacy group seeking more regulations, EPA often does not defend itself. Instead, it admits wrongdoing and agrees to a court-supervised deal usually requiring new and more stringent regulations that are enforceable by the environmental advocate. As a result, the environmental advocates are given the power to control EPA’s regulatory priorities and get handsomely paid for their attorneys’ fees. Termed “Sue and Settle,” this process has been used by EPA 122 times in just Clean Air Act cases since 2009.
In contrast, when EPA was sued over potential impacts of its actions on jobs, it fought tooth and nail. In the Murray case, EPA argued that companies being put out of business by its regulations do not have standing to sue since they suffered no injury. EPA filed numerous motions to prevent EPA officials from being deposed, and asked an appellate court to direct the trial court to disallow discovery. EPA also filed motions to disqualify expert witnesses from testifying and to exclude expert reports and related testimony of Murray Energy’s experts.
It is EPA’s responsibility as a federal agency representing the wider public interest to protect the nation from environmental harm. But Congress did not give EPA a blank check to issue environmental regulations without any regard for their consequences — including destroying jobs and the communities that depend on those jobs. Quite the contrary. Congress mandated EPA to inform it of the impact its regulations have on employment so Congress, the nation’s lawmaker, has the information to adjust the laws when circumstances require it.
Now that EPA is under a federal court order to evaluate job loss from its regulations, it should undertake its statutory duty and inform Congress, and the public, about the real-life impacts of its regulations.
See the article here.
- On November 4, 2016