United States: While Supreme Court Denies Petition For Appeal In Jobs Suit, EPA Plans To Revive Employment Impact Analyses

On January 8, the Supreme Court denied Murray Energy's petition for appeal of a Fourth Circuit decision that had rejected its efforts to obtain judicial enforcement of Section 321 of the Clean Air Act ("CAA").  Section 321(a) requires EPA to evaluate the potential for plant closures and job losses resulting from regulation and/or enforcement under the Act.  The decision marks the end of a legal challenge brought by Murray Energy and 15 states in October 2016, in which the Northern District of West Virginia strongly rebuked EPA's failure to comply with the statute (as previously reported here).  In a 27-page opinion, the district court took EPA to task, finding that the Agency's longstanding failure to comply with § 321 evidenced a "continued hostility" to the provision.  The district court required the Agency to establish a system by the end of 2017 for conducting the evaluations.

EPA appealed the decision to the Fourth Circuit, and the appeals court decided that the CAA did not permit the petitioners to force the EPA to complete these evaluations through litigation.  Specifically, the Fourth Circuit held that the statute did not grant the district court jurisdiction to decide the case.  Although the Fourth Circuit decision prohibits petitioners from forcing the EPA to complete the evaluations under the CAA, it does not prevent the Agency from implementing its own policy.

EPA Administrator Scott Pruitt has announced plans to evaluate the job impacts of new regulations consistent with statutory requirements.  On October 25, EPA published a report  titled Final Report on Review of Agency Actions that Potentially Burden the Safe, Efficient Development of Domestic Energy Resources Under Executive Order 13783 announcing its plan to require "robust evaluations of the employment effects" of its regulations consistent with Section 321(a) of the CAA and similar provisions in other environmental statutes. EPA plans to consider the cumulative impact of "potential losses or shifts of employment" that may result from the implementation and enforcement of not only the CAA but also the Clean Water Act; Toxic Substances and Control Act; Solid Waste Disposal Act; and the Comprehensive Environmental Response, Compensation, and Liability Act.

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