Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39

CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia
Writing for the CourtJudge Bailey
Decision Date17 October 2016
PartiesMURRAY ENERGY CORPORATION, MURRAY AMERICAN ENERGY, INC., THE AMERICAN COAL COMPANY, AMERICAN ENERGY CORPORATION, THE HARRISON COUNTY COAL COMPANY, KENAMERICAN RESOURCES, INC., THE MARION COUNTY COAL COMPANY, THE MARSHALL COUNTY COAL COMPANY, THE MONONGALIA COUNTY COAL COMPANY, OHIOAMERICAN ENERGY INC., THE OHIO COUNTY COAL COMPANY, and UTAHAMERICAN ENERGY, INC., Plaintiffs, v. GINA MCCARTHY, Administrator, United States Environmental Protection Agency, in her official capacity, Defendant.
Docket NumberCivil Action No. 5:14-CV-39

MURRAY ENERGY CORPORATION, MURRAY AMERICAN ENERGY, INC.,
THE AMERICAN COAL COMPANY, AMERICAN ENERGY CORPORATION,
THE HARRISON COUNTY COAL COMPANY, KENAMERICAN RESOURCES, INC., THE
MARION COUNTY COAL COMPANY, THE MARSHALL COUNTY COAL COMPANY,
THE MONONGALIA COUNTY COAL COMPANY, OHIOAMERICAN ENERGY
INC., THE OHIO COUNTY COAL COMPANY, and UTAHAMERICAN ENERGY, INC., Plaintiffs,
v.
GINA MCCARTHY, Administrator, United States Environmental Protection
Agency, in her official capacity, Defendant.

Civil Action No. 5:14-CV-39

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA Wheeling

October 17, 2016


Judge Bailey

MEMORANDUM OPINION AND ORDER DENYING THE UNITED STATES' NEW MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFFS

Pending before this Court are the United States' New Motion for Summary Judgment [Doc. 204], the United States' First Motion in Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, Anne E. Smith [Doc. 266], the United States' Second Motion in Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, Timothy Considine [Doc. 268], and the United States' Third Motion in

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Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, John Deskins [Doc. 270]. All Motions are ripe for decision.

Background

This civil action was filed on March 24, 2014, by Murray Energy Corporation and a number of its subsidiary or affiliated companies1 (hereinafter collectively "Murray") seeking declaratory and injunctive relief for the EPA's alleged failure to perform its duties required under 42 U.S.C. § 7621, which requires the EPA 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 plaintiffs contend that the EPA's enforcement of the Clean Air Act, combined with the EPA's refusal "to evaluate the impact that its actions are having on the American coal industry and the hundreds of thousands of people it directly or indirectly employs" is irreparably harming the plaintiffs [Amended Complaint, Doc. 31, p. 2].

The plaintiffs filed their Amended Complaint on May 23, 2014 [Doc. 31]. After the grant of an extension of time, the EPA filed its Defendant's Motion to Dismiss the Complaint and Motion to Strike Prayer for Injunctive Relief [Doc. 34] on June 30, 2014, asserting that this Court lacked subject matter jurisdiction to hear the case.

By Order entered September 16, 2014 [Doc. 40], this Court denied the Motion and

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found, as a matter of law, that the EPA had a non-discretionary duty to undertake an ongoing evaluation of job losses and that this Court had and has subject matter jurisdiction to hear the case.

On October 9, 2014, the EPA filed its United States' Motion to Clarify the Court's September 16, 2014 Order [Doc. 50]. By Order entered October 24, 2014, this Court denied the Motion to Clarify [Doc. 53].

On December 23, 2014, the defendant filed The United States' Motion to Dismiss Due to Lack of Article III Standing [Doc. 59], as well as its Motion of the United States to Stay Discovery Pending Resolution of Dispositive Motion and Request for Expedited Proceeding [Doc. 61]. By Order entered March 27, 2015, this Court denied the Motion to Dismiss and denied as moot the Motion to Stay Discovery [Doc. 71].

On April 10, 2015, the EPA filed The United States' Motion for Summary Judgment [Doc. 75]. On April 22, 2015, Murray filed Plaintiffs' Motion to Compel Discovery, Extend the Deadline for Fact Discovery, and Hold Defendant's Motion for Summary Judgment in Abeyance Pending Completion of Discovery [Doc. 81]. On May 8, 2015, the EPA filed United States' Motion for Entry of Protective Order [Doc. 87]. After briefing, on May 29, 2015, this Court granted Plaintiffs' Motion to Compel Discovery, Extend the Deadline for Fact Discovery, and Hold Defendant's Motion for Summary Judgment in Abeyance Pending Completion of Discovery [Doc. 81] and denied the United States' Motion for Entry of Protective Order [Doc. 93].

On June 1, 2015, the EPA filed United States' Motion to Reconsider or for Clarification [Doc. 95], seeking reconsideration of the May 29, 2015, Order, which was denied by this Court by Order entered June 4, 2015 [Doc. 100].

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On June 4, 2015, the EPA sought an extension of the discovery completion deadline by motion [Doc. 101], which was granted by Order [Doc. 107].

On June 12, 2015, the EPA filed a petition with the United States Court of Appeals for the Fourth Circuit seeking a writ of mandamus directing this Court to vacate its order of May 29, 2015 [Doc. 93], which granted plaintiffs' motion to compel discovery, denied EPA's motion for a protective order, and held the agency's fully-briefed motion for summary judgment in abeyance pending completion of discovery. The EPA further requested that the Fourth Circuit direct this Court to disallow discovery in this case [Doc. 103]. By Order entered July 9, 2015, the Fourth Circuit denied the petition [Doc. 114].

On July 23, 2015, the EPA sought an additional extension of the discovery completion deadline by motion [Doc. 119], which was granted by Order [Doc. 120].

On August 14, 2015, the EPA filed a Motion for Protective Order [Doc. 121], which was granted by Order [Doc. 124].

On September 28, 2015, the parties filed a joint stipulation extending the time for the plaintiffs to respond to the EPA's discovery requests [Doc. 135].

On October 16, 2015, the EPA filed the United States' Emergency Motion for Protective Order Precluding the Deposition of EPA Administrator McCarthy [Doc. 147]. This Court denied the Motion by Order entered November 12, 2015 [Doc. 164]. The EPA, on November 10, 2015, sought a writ of mandamus from the Fourth Circuit preventing the deposition of Administrator McCarthy [Doc. 162], which writ was granted by the Fourth Circuit on November 25, 2015 [Doc. 167].

On October 23, 2015, the parties jointly moved to extend certain deadlines in the amended scheduling order [Doc. 152], which motion was granted on October 27, 2015

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[Doc. 153].

On December 11, 2015, the parties jointly moved to further extend certain deadlines in the amended scheduling order [Doc. 171], which motion was granted on December 23, 2015 [Doc. 172].

On February 19, 2016, this Court denied the EPA's then-pending motion for summary judgment so that a new motion could be filed upon the completion of discovery [Doc. 178].

On April 22, 2016, the EPA filed United States' Expedited Motion for Leave to File Material Designated as "Confidential" or "Highly Confidential-Attorneys Eyes Only" under Seal [Doc. 199], which motion was granted [Doc. 201].

On May 2, 2016, the EPA filed the pending motion for summary judgment [Doc. 204].

On May 16, 2016, the EPA filed United States' Expedited Motion to Disqualify or Exclude Jeffrey Holmstead [Doc. 206], which Motion was denied in part and deferred in part on May 20, 2016 [Doc. 212]. After briefing, the Motion was denied [Doc. 238].

On May 25, 2016, the parties jointly moved to extend the briefing deadlines on the Motion for Summary Judgment [Doc. 216], which was granted on May 26, 2016 [Doc. 218].

On May 31, 2016, the plaintiffs filed a motion for extension of time to file their response to the Motion for Summary Judgment and also filed a Motion for in Camera Review, to Compel Production of Documents and to Permit Depositions [Docs. 222 & 223]. By Order entered June 2, 2016, this Court granted the motion for extension of time [Doc. 227]. The next day, the EPA filed a motion seeking reconsideration of the June 2 order [Doc. 230], which motion was denied on June 15, 2016 [Doc. 237].

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On June 29, 2016, this Court heard oral argument on the Motion for in Camera Review, to Compel Production of Documents and to Permit Depositions [Doc. 223], which hearing is the subject of the Order filed July 8, 2016 [Doc. 250]. By Order entered July 20, 2016, this Court granted in part and denied in part the Motion [Doc. 251].

On August 22, 2016, the Chamber of Commerce of the United States and the National Mining Association sought leave to file an amicus curiae brief in support of plaintiffs [Doc. 265]. Leave was granted on August 24, 2016 [Doc. 273], and the brief was filed the same day [Doc. 275].

On August 23, 2016, the EPA filed United States' First Motion in Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, Anne E. Smith [Doc. 266], the United States' Second Motion in Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, Timothy Considine [Doc. 268], and the United States' Third Motion in Limine to Exclude the Expert Report and Related Testimony of Plaintiffs' Expert, John Deskins [Doc. 270], all three of which remain pending.

On September 2, 2016, the State of West Virginia and twelve other states moved for leave to file an amicus curiae brief in support of plaintiffs [Doc. 276]. Leave was granted on September 7, 2016 [Doc. 277], and the brief was filed the same day [Doc. 278].

On September 14, 2006, the plaintiffs filed a Motion for Leave to File Plaintiffs' Surreply in Opposition to Defendant's Motion for Summary Judgment and Response to Rule 56(c)(2) Objections [Doc. 283]. Leave was granted on September 15, 2016 [Doc. 284].

On September 23, 2016, the plaintiffs filed a Motion for Leave to File Plaintiffs' Surreply in Opposition to Defendant's Motions in Limine Seeking to Exclude the Expert

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Reports and Related Testimony of Anne E. Smith, Timothy Considine, and John Deskins [Doc. 288]. Leave was granted on September 28 [Doc. 289].

Legal Standard

Fed. R. Civ. P. 56 provides that summary judgment is appropriate "if the pleadings, depositions,...

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