EPA Jobs Loss Evaluations Update

Late last year, CoA submitted an amicus brief in the case of Murray Energy v. EPA.  The brief supported Murray Energy’s cert. petition seeking review of its case before the Supreme Court.  The Murray Energy case centered on employment evaluations required under Section 321(a) of the Clean Air Act.

A federal court in West Virginia ordered the EPA to comply with the statutory mandates of Congress, requiring the EPA to conduct “continuing employment evaluations” related to Clean Air Act implementation or enforcement.  The Fourth Circuit, however, sided with the EPA and ruled that, despite the plain language of the statute, Section 321(a) was discretionary and not an agency obligation.

Our brief made the following point: Congress specifically stated that the EPA shall conduct these continuing employment evaluations.  Not may, or if something happens, or if the EPA deems it expedient, but shall.  Unfortunately, earlier this year, the Supreme Court denied Murray Energy’s petition and will not review the matter.  However, the EPA has admitted its failure to conduct job loss evaluations and committed to doing so in the future: “the Agency historically has not conducted these assessments. EPA acknowledges the importance of considering the cumulative effects of its regulations on the American public. Accordingly, EPA intends to conduct these evaluations consistent with the statutes.”  CoA will continue to monitor these developments and help ensure that the EPA follows through on its promises.

Meanwhile, nearly two years ago, CoA petitioned the EPA to initiate a rulemaking to implement procedures and hearings under Section 321(b) of the Clean Air Act.  This section allows any employee who is discharged or laid off, threatened with discharge or layoff, or whose employment is adversely affected by Clean Air Act requirements to request an investigation and a hearing from the EPA.  The EPA has failed to promulgate any regulations regarding the process and standards by which it should conduct investigations and hearings under Section 321(b) and has not responded to our petition, other than to acknowledge it.  As the agency is now under the new leadership of Acting Administrator Andrew Wheeler, the opportunity again presents itself for the EPA to finally address our petition and give the public the necessary tools to seek relief from its regulatory activities.

Josh Schopf is Counsel at Cause of Action Institute

CoA Institute Urges Supreme Court to Hold EPA to Task

Section 321(a) of the Clean Air Act contains an explicit requirement that the Environmental Protection Agency (“EPA”) conduct “continuing employment evaluations” related to Clean Air Act implementation or enforcement.  What this means is that the EPA needs to continually do an analysis of how many jobs will be lost, if any, including whenever it considers new regulations.  This allows the EPA, Congress, and the public as a whole to evaluate whether the loss in American jobs is worth the overall benefit to American lives.  If a regulation, for example, has virtually no impact on environmental well-being, but would cost 30,000 jobs, a rational person would conclude the benefits of the regulation simply aren’t worth the cost.

Of course, most analyses are never this clear cut, which is why we need solid science and transparency from the EPA.  And that’s why Congress required it.  As we detail in our brief, EPA administrations past and present have confessed to not conducting these studies.  Similar requirements extend to a number of other environmental statutes and, to the knowledge of Cause of Action Institute, the EPA has only conducted one such study in the past three decades.  Very recently, the EPA publicly admitted this and indicated its willingness to finally comply, but hasn’t yet released any specifics.

The Murray Energy case centers on employment evaluations required under the Clean Air Act.  A federal court in West Virginia ordered the EPA to comply with the statutory mandates of Congress, castigating the agency for its willful disobedience.  The Fourth Circuit, however, sided with the EPA and ruled that Congress’ edict was too murky to be viewed as “mandatory” and was thus “discretionary.”

Murray Energy has asked the Supreme Court to reverse the court below, and Cause of Action submitted an amicus brief supporting this effort.  Our brief makes the following point: Congress specifically said that the EPA shall conduct the continuing employment evaluations.  Not may, or if something happens, or if the EPA deems it expedient, but shall.  The Fourth Circuit effectively read the mandatory language out of the statute, denying Murray Energy relief because the Circuit court believed it was too complicated to enforce.   That’s not how mandates work. We’re hopeful the Supreme Court will agree, grant review of the case, and reverse the Fourth Circuit’s error.

Eric Bolinder is Counsel at Cause of Action Institute

Following CoAI’s Letter, DOJ Rejects Unlawful Slush-Fund Settlement Project in Harley-Davidson Enforcement Action

On July 20, 2017, the Department of Justice (“DOJ”) filed a substitute consent decree in the Environmental Protection Agency’s Clean Air Act enforcement action against Harley-Davidson, Inc. removing a requirement that Harley-Davidson fund a so-called Emissions Mitigation Project (“Project”).[1]  About three weeks earlier, on June 1, 2017, Cause of Action Institute (“CoA Institute”) submitted a Freedom of Information Act request to EPA requesting all documents and records related to the selection of the Project, and the American Lung Association  as the Project’s implementing entity.[2]  In conjunction with that request, we also sent a letter to EPA Administrator Pruitt asking him to reconsider the unlawful mitigation Project, because it lacked a sufficient nexus to the underlying violation.[3]  As we stated, the Project appeared to be a continuation of Obama-era practices that used consent decrees to funnel funds to favored non-governmental organizations.[4]

Fortunately, Attorney General Jeff Sessions issued a policy directing U.S. attorneys to end this practice on June 5, 2017.[5]  DOJ attorneys cite Sessions’ memorandum as a reason for rejecting the Emissions Mitigation Project and filing the new consent decree, because the original Harley-Davidson agreement failed to connect the alleged violation—excess gas and nitrogen oxides emissions nationally—to the Project—replacing wood-burning appliances in the northeast.[6]

CoA Institute applauds DOJ’s revised consent decree, which is consistent with our assessment that the Emissions Mitigation Project violates the “sufficient nexus” requirement necessary for ensuring that agencies do not abuse their enforcement power at the expense of taxpayers.

Travis Millsaps is Counsel at Cause of Action Institute

[1] Consent Decree, United States v. Harley-Davidson, Inc., No. 16-cv-01687 (D.D.C. filed July 20, 2017), ECF No. 6.

[2] FOIA Request EPA-HQ-2017-007905, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2tk7YY4.

[3] Letter from Travis G. Millsaps, Counsel, Cause of Action Inst., to Hon. Scott Pruitt, Adm’r, Envtl. Prot. Agency (June 1, 2017), available at http://bit.ly/2uesJGh.

[4] Blog Post, Cause of Action Inst., Cause of Action Institute Applauds AG Sessions’ Termination of Settlement Fund Payouts to Third-Party Groups (June 7, 2017), https://causeofaction.org/cause-action-institute-applauds-ag-sessions-termination-settlement-fund-payouts-third-party-groups/.

[5] Memorandum from Jeff Sessions, Attorney Gen., U.S. Dep’t of Justice, to U.S. Attorneys et al. (June 5, 2017), available at https://www.justice.gov/opa/press-release/file/971826/download.

[6] Consent Decree, supra note 1, at 2–3; Memorandum from Jeff Sessions, supra note 5; see also Letter from Travis Millsaps to Scott Pruitt, supra note 3, at 2–3.

Pruitt Should Reconsider Obama-Era Settlement with Harley-Davidson That Funnels Millions to an Unrelated, Politically-Favored Project

Washington, D.C. – Cause of Action Institute (CoA Institute) today sent a letter to EPA Administrator Scott Pruitt urging him to reconsider an Obama-era settlement reached with Harley-Davidson, Inc. for selling after-market “super tuner” devices to boost performance of their motorcycles. The EPA alleged these devices were sold in violation of the Clean Air Act. Without admitting liability, Harley-Davidson agreed to settle the lawsuit.

The settlement included a controversial requirement that Harley-Davidson fund a seemingly unrelated program to replace or retrofit wood-burning stoves with cleaner appliances, which appears to violate the agency’s own guidance on the issuance of consent decrees.

CoA Institute also issued a separate Freedom of Information Act (“FOIA”) request to the EPA for documents related to the settlement negotiations.

CoA Institute President and CEO John Vecchione: “EPA is erring by not implementing a mitigation project by Harley-Davidson that fits the violation as required by applicable rules. The Obama administration’s pattern of using settlements to fund favored political projects is a dangerous precedent that should be reviewed and reversed. Funneling settlement funds to pet projects should not supplant the congressional appropriations process or applicable rules that mitigation projects address the underlying harm caused.”

Unlike the defeat devices unknowingly installed in Volkswagen vehicles, the Harley-Davidson “defeat devices” were freely and intentionally purchased by individuals, and came with labels that detailed what “performance enhancements are considered street legal and for competition-use only” and warned against improperly using the devices. Harley-Davidson maintains that these products, which have been sold for over two decades, “[were] and [are] legal to use in race conditions in the U.S.”

The “Emissions Mitigation Project” included in the consent decree requires Harley-Davidson to fund a “wood-burning appliance changeout and retrofit.” The project is defined as a “supplemental environmental project” (“SEP”). However, in 2015, the EPA issued a guidance document outlining the legal requirements enforcement officials must adhere to when crafting an SEP.  The Harley-Davidson consent decree violates EPA’s guidance on SEPs by not establishing a sufficient nexus between the mitigation project and the alleged underlying violations.

In its letter, CoA Institute urges EPA Administrator Pruitt to reconsider the Harley-Davidson consent decree’s unlawful Emissions Mitigation Project, and replace it with a project that conforms to the SEP Policy’s sufficient nexus requirement.

The letter to Administrator Pruitt is available here The FOIA request is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org