EPA’s Duty Under Section 321 of the CAA Is Not Amenable To Review Under Section 304(a)(2)


On June 29, the U.S. Court of Appeals for the Fourth Circuit issued an important ruling in the case of Murray Energy Corp., et al., v. EPA. At issue was the duty of the Environmental Protection Agency (EPA) under Section 321 of the Clean Air Act (CAA) to conduct “continuing evaluations of potential loss or shifts of employment” which may result from EPA’s regulatory actions. The Court of Appeals reversed the District Court, holding that, properly construed, Section 321’s provisions are open-ended, and establish no start-dates, deadlines or any other time-related instructions to guide EPA’s continuous evaluation efforts. It reasoned that EPA is therefore left with considerable discretion in managing its continuous evaluations, and thus it is not a non-discretionary obligation placed on EPA that is susceptible to a lawsuit under Section 304 of the CAA. It found that the U.S. District Court for the Northern District of West Virginia was therefore without jurisdiction to decide this case.

This is another case that illustrates the powerful role the federal courts play in the proper interpretation of the environmental laws that apply to many industries, including the real estate and construction industries, as well as to commercial and industrial activities.

Many actions taken by EPA over the years have been very controversial in the coal mining regions of the country. In this case, Murray Energy Corp. complained that EPA was not evaluating the economic consequences of its actions. Murray Energy Corp. and related companies filed a lawsuit against EPA under the provisions of Section 304(a)(2), alleging that EPA was not making the evaluations called for by Section 321, and requested an injunction ordering EPA to conduct such evaluations and prohibiting EPA from engaging in certain regulatory activities until it had satisfied the law.

The District Court, largely agreed with Murray Energy Corp., holding that Section 321 imposed a non-discretionary duty on EPA to conduct these economic evaluations which allowed for the plaintiffs to sue EPA under the provisions of Section 304 of the CAA. On January 11, the District Court issued an extensive injunction ordering EPA to conduct an evaluation of certain economic consequences of it coal-related regulatory activities.

On appeal, turning to the question of whether Section 304(a)(2) of the CAA authorizes suits to enforce the EPA’s duty outlined in Section 321(a) of the CAA, the Court of Appeals reasoned:

… Section 321(a) provides that the EPA ‘shall conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the CAA] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.’ 42 U.S.C. § 7621(a). This statutory language, in our view, does not impose on the EPA a specific and discrete duty amenable to Section 304(a)(2) review.

The Court of Appeals’ ruling instructs the District Court to dismiss the lawsuit for want of jurisdiction.