In 2014, Murray Energy Corporation and several of its affiliates sued EPA Administrator Gina McCarthy, alleging that the EPA was in violation of 42 U.S.C. § 7621, § 321(a) of the Clean Air Act, which requires the agency to “conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provision of [the Clean Air Act] and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement.”
The case is venued in West Virginia, and U.S. District Judge John Preston Bailey presides. In 2016, the parties filed cross motions for summary judgment. On October 17, 2016, Judge Bailey denied the government’s motion and granted Murray Energy Corporation’s motion. This means that Murray won the case. Judge Bailey ordered the EPA to comply with the Clean Air Act, as follows:
The Defendant is ORDERED to file, within fourteen days of the date of this Order, a plan and schedule for compliance with § 321(a) both generally and in the specific area of the effects of its regulations on the coal industry.
The EPA apparently responded with a filing that said it never carries out the sort of economic assessments specified in § 321(a), and it would take two years for it to devise a methodology to do so. That caused Judge Bailey to unload on the agency, in an order that apparently is not yet online:
A judge has ordered federal regulators to quickly evaluate how many power plant and coal mining jobs are lost because of air pollution regulations.
U.S. District Judge John Preston Bailey in Wheeling made the ruling after reviewing a response from outgoing U.S. Environmental Protection Agency Administrator Gina McCarthy.
McCarthy had responded to the judge’s previous order in a lawsuit brought against her by Murray Energy Corp. that the EPA must start doing an analysis that it hadn’t done in decades.
According to Wednesday’s order, McCarthy asserted it would take the agency up to two years to devise a methodology to use to try to comply with the earlier ruling.
“This response is wholly insufficient, unacceptable, and unnecessary,” Bailey wrote.
Like many federal agencies, the EPA is a scofflaw. It is quick to bring criminal charges against individuals who unintentionally violate pollution laws, but it views its own compliance with the law as strictly optional.
Judge Bailey continued:
The judge said the EPA is required by law to analyze the economic impact on a continuing basis when enforcing the Clean Air Act and McCarthy’s response “evidences the continued hostility on the part of the EPA to acceptance of the mission established by Congress.”
I think that is correct. The EPA was created by Congress and owes its powers exclusively to Congressional enactment, but over time it has become contemptuous of its democratically-elected master, and has come to view itself as a superior and independent power, entitled to enforce those legal provisions that it likes, and ignore those that are inconvenient. Agencies like the EPA are the single greatest threat to the freedom of American citizens.
Bailey ordered the EPA to identify facilities harmed by the regulations during the Obama presidency by July 1. That includes identifying facilities at risk of closure or reductions in employment.
The EPA had contended that analyzing job loss won’t change global energy trends.
Typical EPA arrogance: It is not responsible for “global energy trends,” it is responsible for carrying out its duties in accordance with its statutory mandate from Congress. It is not the EPA’s role to decide that some provisions of the statutes that govern it are unfortunate and may be ignored, as Judge Bailey reminded Gina McCarthy:
Bailey wrote that the EPA can recommend amendments to Congress if it feels strongly enough.
“EPA does not get to decide whether compliance with (the law) is good policy, or would lead to too many difficulties for the agency,” Bailey wrote. “It is time for the EPA to recognize that Congress makes the law, and EPA must not only enforce the law, it must obey it.”
Amen! One of the Trump administration’s most important tasks will be to rein in rogue agencies like EPA and bring them into compliance with the law. This will be a battle royal, as the entrenched bureaucrats, nearly all of them Democrats, will fight tooth and nail to maintain their dictatorial supremacy over the rest of us. Fortunately, judges like John Bailey are willing to stand up for the rule of law and resist the creeping dictatorship of the liberal bureaucracy. My own opinion is that the EPA should be abolished, and then we can have a rational discussion of what far more modest agency should take its place.