The Obama administration’s war on coal was dealt a setback by a recent decision from the U.S. District Court for the Northern District of West Virginia. The court held that the U.S. Environmental Protection Agency failed to follow the law and did not properly evaluate the job losses caused by its regulations.
Plaintiffs, including Murray Energy Corp., a large coal producer, sued the EPA regarding its failure to comply with the Clean Air Act, which instructs the EPA to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of this Act and applicable implementation plans.”
The EPA argued that because there is no specified date by which evaluations should be completed, there is no enforceable duty to perform any evaluations. The court, noting the “continuing” language used in the statute, didn’t agree. The EPA here is like a child who after being told by a parent to “keep your room clean” argues that the absence of a deadline means that they do not really have to clean the room.
Only in a federal bureaucracy could the term “continuing” be construed as “never.” As the court noted, the “Blacks’s Law Dictionary” definition of “continuing” is “uninterrupted.”
The court stated that “while the EPA may have discretion as to the timing of such evaluations, it does not have the discretion to categorically refuse to conduct any such evaluations.”
The court further noted that the U.S. Supreme Court has held “it is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision-making.”
Thus, while Congress gave the EPA discretion to determine the structure of “continuing evaluations,” that discretion cannot be translated into discretion to not conduct the evaluations.
The EPA also had the gall to assert that the plaintiff coal companies had no standing to sue, arguing that no injury to the plaintiffs could be traced to the failure to perform evaluations.
On this point the court disagreed, stating, “while the EPA argues that such (injury) would only be traceable to the earlier actions of the EPA rather than the failure of the EPA to conduct employment evaluations, this Court cannot agree. The claimed injuries, while in part traceable to the prior actions of the EPA, may also be fairly traceable to the failure of the EPA to conduct the evaluations.”
The court then gets to the real reason why the EPA does not want to perform these continuing evaluations: Doing so “may have the effect of convincing the EPA, Congress, and/or the American public to relax or alter EPA’s prior decisions.” In other words, the EPA knows that the only way to be sure it can succeed in its war on coal is to keep the effects secret as long as possible.
Keeping the effects secret will also help keep Congress from asking the EPA uncomfortable questions. Here the court, quoting the U.S. Supreme Court, stated that the “continuing evaluation requirement ‘will allow the Congress to get a close look at the effects on employment of legislation such as this, and will thus place us in a position to consider such remedial legislation as may be necessary to ameliorate those effects.’ ”
The court ordered the EPA to provide it with a plan on how it would perform the evaluations. After the EPA begins performing the required evaluations, Congress should take up the court’s invitation and “get a close look at the effects on employment.” Those effects should be taken into consideration when considering how much taxpayer money the EPA gets from Congress next year.
See the article here.
- On November 2, 2016