By Timothy Featherston*
The Environmental Protection Agency (EPA) appears to be preparing itself for a legal battle with the coal industry over the interpretation of § 231(a) of the Clean Air Act. The provision requires the EPA to conduct “continuing evaluations of potential loss or shifts in employment” which result from the EPA’s enforcement and administration of the act. Several coal companies believe that the EPA has not complied with this provision and brought suit against the organization in Federal District Court for the Northern District of West Virginia in May of 2014. The plaintiffs contend that the EPA’s non-compliance with this provision is part of the Obama Administration’s “war on coal.” On October 17, 2016, the court issued an order that found for the plaintiffs, stating that the plain text of the legislation, as well as its history, clearly show that the intent of Section 231(a) of the Clean Air Act was to create a “mandatory obligation”. The order required the EPA to submit a compliance plan within the next 14 days.
The EPA issued its response on November 2nd. In their filing, they followed the courts request and laid out an extensive plan to bring themselves into compliance with § 231 (a), but they also retained all rights to appeal the decision by the court and gave the impression that they intend to do exactly that. Their main arguments on appeal would be: (1) this section of the Clean Air act is discretionary and therefore the court lacks subject matter jurisdiction due to the agency’s sovereign immunity and (2) the agency’s policies were already in line with the legislative intent of the act. Though with the recent election, there is a question as to whether they will seek appeal at all.
The EPA makes it clear in their court filing that they do not believe that Court has the proper jurisdiction to rule on the case due to the agencies sovereign immunity, which they believe has not been waived. They argue that the provision of the Clean Air Act that the plaintiff coal companies rely on for their case is “discretionary,” and therefore, the plaintiffs have failed to show that the agency has waived its sovereign immunity in this situation. Under § 304 of the Clean Air Act, the EPA only waives its right to sovereign immunity where there is “alleged a failure” that the agency failed to perform “any act or duty … which is not discretionary”. If the EPA can show that the section in question in this suit was intended to be discretionary, their appeal will likely succeed, but the court accepted and articulated the argument of the plaintiffs that § 231(a) is non-discretionary.
When analyzing the statute in question, the court focused most of its analysis on the legislature’s use of the word “shall”. It notes that “shall” is used in statutes in order to indicate something that is intended to be construed as a mandatory obligation. Since the plain text of the statute states that “the Administrator shall conduct,” the court holds that this provision is a mandatory obligation, not a discretionary measure, and therefore, that sovereign immunity has been waived. It is unlikely that the EPA would be able to argue the plain text of the statute on appeal.
Legislative Intent and History
The EPA also argues that the evaluations that they already conduct should qualify as compliance with § 231(a) of the statute. The court here counters that the legislative history clearly shows that Congress intended for the act to create specific continuing job-loss assessments. The legislative history appears to be on the side of the court here. The House Committee Report on the 1977 amendments to the Clean Air Act directly addressed § 231(a). It noted that there were concerns about “the extent to which the Clean Air Act” is “responsible for plant shutdowns … and consequent losses of employment”. The report also mentions that many plant closings that were not at all related to environmental issues were being blamed on the Clean Air Act in a form of “environmental blackmail”. The report goes on to indicate that there is a necessity to examine how the enforcement of the Clean Air Act is affecting employment.
This tension between environmental regulations and the interest of energy companies that sits at the core of this provision’s legislative history can be felt in the very claim that the plaintiffs are bringing. They feel that the enforcement of the Clean Air Act represents a “war on coal” . The legislative history supports the court’s argument that the EPA must create a plan in order to specifically measure the effects the enforcement of the Clean Air Act has on employment loss; it’s unlikely that they will win this argument on appeal. It also simply might be better for the EPA in the long run. If they implement this plan as the court has ordered, there will be a record of whether or not their regulations are actually harming jobs. It will then be harder for the coal companies to blame their losses on the EPA without evidence.
Will the EPA still Appeal?
Since the election of Donald Trump as President of the United States, there has been a general consensus that the EPA will likely reduce the intensity with which in enforces environmental regulations such as those prescribed by the Clean Air Act. It is believed that the new President will work to undue many of the rule and policy initiatives implemented by the previous administration. For that reason, the EPA may choose not to go through with this appeal at all and simply implement the plan as ordered by the court.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Timothy Featherston is a Junior Editor at MJEAL. He can be reached at firstname.lastname@example.org.
 See Amanda Reilly, EPA to Ask Science Advisers to Assess Rules’ Job Impacts, Greenwire (November 2, 2016) http://libproxy.law.umich.edu:2217/greenwire/stories/1060045169.
 42 U.S.C.A. §7621 (West).
 Amanda Reilly, EPA to Ask Science Advisers to Assess Rules’ Job Impacts, Greenwire (November 2, 2016) http://libproxy.law.umich.edu:2217/greenwire/stories/1060045169.
 Murray Energy Corp. v. McCarthy, No. 5:14-CV-39, 2016 WL 6083946, at *6 (N.D.W. Va. Oct. 17, 2016).
 Reilly, supra note 3
 See Murray Energy Corp. v. McCarthy, 2016 WL 6083946 at *4. (2016)
 See Id. at *4.
 Id. At *12
 Id. at *6.
 Id. at *6
 Reilly, supra note 3
 H.R. Rep. 95-294 at 316.
 Reilly, supra note 3.
See e.g. Sean Reilly, ‘Significant Shift’ Likely on Regulatory Oversight, Greenwire (November 9, 2016) http://libproxy.law.umich.edu:2217/greenwire/stories/1060045520
 See e.g. Id.