Friday, November 13, 2015

Clean Air Clean Hands

Written by Stephen Kenney

On Thursday, November 12, the Environmental Protection Agency (EPA) lost its bid to block a scheduled deposition for administrator Gina McCarthy.   Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, found McCarthy’s potential testimony to be relevant enough to require a deposition because of her close involvement in the analyses at issue. 

In their lawsuit, Murray contends that the EPA must take into account the economic impact of its regulations.  Murray Energy Corp says the estimates are mandated for every Clean Air Act regulation that affects the coal industry.  Murray cites Section 321(a) of the Clean Air Act (CAA) to support this point.  Section 321(a) requires the EPA to continuously evaluate “potential loss or shifts of employment which may result from the administration or enforcement” of the law.  The EPA believes that it fully complied with the requirements.

Judge Bailey reasoned in his order that McCarthy clearly has personal knowledge of the facts.  He also highlighted that the “dichotomy in positions constitutes extraordinary circumstances.”  McCarthy had testified previously that Section 321(a) has not been interpreted “to require EPA to conduct employment investigations in taking regulatory actions.”  Judge Bailey found this to be contrary to the EPA’s Motion for Summary Judgment where it stated that “EPA is entitled to summary judgment because it has conducted ‘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,’ as required by Section 321(a) of the Clean Air Act.” 

Judge Bailey also found that the apparent refusal of the Administrator to comply with the terms of Section 321(a) provides sufficient prima facie evidence of wrongdoing such that the plaintiffs should be able to “probe her deliberative processes”. Finally, the Court found that there is no viable alternative to the deposition of the Administrator.

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