The Nickel Report

On October 17, the federal District Court of the Northern District of West Virginia ruled in a lawsuit brought by Murray Energy that EPA had violated Clean Air Act § 321(a)’s requirement that the agency “conduct continuing evaluations of potential loss or shifts of employment” that may result from EPA air regulations. Judge John Preston Bailey, a nominee of President George W. Bush, found that “Congress unmistakably intended to track and monitor the effects of the Clean Air Act and its implementing regulations on employment in order to improve the legislative and regulatory processes,” and that job loss evaluations “may have the effect of convincing the EPA, Congress, and/or the American public to relax or alter EPA’s prior decisions.” At that time, Judge Bailey gave EPA just two weeks to come up with a plan to evaluate those impacts.

EPA responded on October 31 with a court filing suggesting that it would take far longer to plan job loss evaluations. EPA says in the filing that such planning should be referred to EPA’s Science Advisory Board, but that “because of the 14-day period to respond to the October 17 Order, EPA has not had sufficient time to prepare draft charges that could be publicly noticed or shared with the Science Advisory Board.” EPA went on to note that it “believes there are various data and methodological challenges and questions that will benefit from the scientific and technical assistance of the Board. Such challenges and questions should be addressed by an independent and objective body of qualified subject-matter experts in accordance with the Board’s public processes.” For example, the filing says that “opinions and methodologies of Dr. Anne Smith and other individuals” on conducting the job loss evaluations “would benefit from the kind of robust peer review and scientific and technical evaluation that the Board will provide.”

Ultimately, EPA concluded by saying it would take at least two years for officials to issue a directive to the board and choose members for a special panel, and for that panel to actually write the report. EPA also noted in that filing that it disagreed with the ruling and may still appeal it.

Murray Energy’s response to EPA’s proposal is due by November 14.