Murray Energy Corporation et al v. Administrator of Environmental Protection Agency

Filing 164

MEMORANDUM ORDER DENYING 147 MOTION FOR PROTECTIVE ORDER AND 155 MOTION TO STAY DEPOSITION. This Court will, however, stay the deposition of Administrator McCarthy until December 4, 2015. Signed by District Judge John Preston Bailey on 11/12/2015. (copy to counsel of record via CM/ECF) (nmm)

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

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.

Civil Action No. 5:14-CV-39
Judge Bailey

GINA McCARTHY, Administrator,
United States Environmental Protection
Agency, in her official capacity,
Defendant.
MEMORANDUM ORDER DENYING MOTION FOR
PROTECTIVE ORDER AND MOTION TO STAY DEPOSITION
Pending before this Court are United States’ Emergency Motion for Protective Order
Precluding the Deposition of EPA Administrator McCarthy [Doc. 147] and United States’
Motion to Stay Administrator McCarthy’s Deposition [Doc. 155]. Both Motions have been
fully briefed and are ripe for decision.
This civil action was filed on March 24, 2014, by Murray Energy Corporation and a

1

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].
By Order entered September 16, 2014 [Doc. 40], this Court denied the Motion and
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.
The plaintiffs have filed a notice of deposition setting the deposition of EPA
Administrator Gina McCarthy for November 24, 2015, leading to the EPA’s motion to
preclude the deposition. The EPA sets forth two arguments why this Court should grant
the protective order:
1.

That depositions of senior government officials, such as Administrator

1

According to the Amended Complaint, the plaintiffs collectively employ over 7,200
and comprise the largest underground coal mining operations in the United States [Doc.
31, ¶ 76].
2

McCarthy, are barred absent extraordinary circumstances; and
2.

That the plaintiffs have not established extraordinary circumstances sufficient

to justify Administrator McCarthy’s deposition.
DISCUSSION
Any discussion of the deposition of a high ranking Government official must begin
with United States v. Morgan, 313 U.S. 409 (1941). “As a general principle, a party can
conduct the deposition of any other person who possesses information relevant to a claim
or defense.
Parties may obtain discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party, . . .. For good cause, the court
may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to discovery of admissible
evidence.
Fed.R.Civ.P. 26(b)(1).
“As a person likely to possess relevant information ‘reasonably calculated to lead
to discovery of admissible evidence,’ [EPA Administrator McCarthy] would generally be
subject to a discovery deposition. However, the Supreme Court has created an exception
to this rule as it applies to high-ranking officials holding public office in the case of United
States v. Morgan, 313 U.S. 409 (1941). The Morgan doctrine recognizes that, left
unprotected, high-ranking government officials would be inundated with discovery
obligations involving scores of cases where the public official would have little or no

3

personal knowledge of material facts. Left unchecked, the litigation-related burdens placed
upon them would render their time remaining for government service significantly diluted
or completely consumed.” United States v. Wal Mart Stores, Inc., 2002 WL 562301, at
*1 (D. Md. Mar. 29, 2002).
“The Morgan doctrine arose in the context of a quasi-legislative proceeding where
the Secretary of Agriculture issued an order setting rates for market agencies at the Kansas
City Stockyards. Under the operative statute, the regulated agencies were entitled to a full
hearing with procedural safeguards. However, due to unusual and unique circumstances,
the Secretary was required to be an arbiter of rates for past years. The lower court allowed
the parties to conduct a deposition of the Secretary which the Supreme Court found was
inappropriate due to the proceeding before the Secretary having a quality of a judicial
proceeding. Accordingly, Morgan stands for the principle that when the Secretary's duties
take on a judicial quality there is no right to conduct a deposition of such a decision maker
in the absence of extraordinary circumstances. See also Simplex Time Recorder Co. v.
Secretary of Labor, 766 F.2d 575 (D.C. Cir. 1985). Morgan has come to stand for the
notion that as for high-ranking government officials, their thought processes and
discretionary acts will not be subject to later inspection under the spotlight of deposition.
Decision-makers enjoy a mental process privilege. United States v. Miracle Recreation
Equip. Co., 118 F.R.D. 100 (S.D. Iowa 1987); Kyle Eng'g Co. v. Kleppe, 600 F.2d 226
(9th Cir. 1979); In re Office of Inspector General, 933 F.2d 276 (5th Cir. 1991); United
States v. Merhige, 487 F.2d 25 (4th Cir.), cert. denied, 417 U.S. 918 (1974); and In re
United States of America, 985 F.2d 510 (11th Cir. 1993).” Id.

4

“Since Morgan, federal courts have consistently held that, absent ‘extraordinary
circumstances,’ a government decision-maker will not be compelled to testify about his
mental processes in reaching a decision, ‘including the manner and extent of his study of
the record and his consultations with subordinates.’ [313 U.S. at 422]. See Simplex Time
Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985); Sweeney v.
Bond, 669 F.2d 542, 546 (8th Cir.), cert. denied, 459 U.S. 878 (1982); Kyle Engineering
Co. v. Kleppe, 600 F.2d 226, 231–32 (9th Cir. 1979); Warren Bank v. Camp, 396 F.2d
52, 56 (6th Cir. 1968); Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318,
325–26 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967).”
Franklin Sav. Assn. v. Ryan, 922 F.2d 209, 211 (4th Cir. 1991). See also Bogan v. City
of Boston, 489 F.3d 417, 423 (1st Cir. 2007); In re United States (Holder), 197 F.3d 310,
313 (8th Cir. 1999); and In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995).
A review of the case law surrounding the issue discloses that a deposition of a high
ranking Government official will not be permitted unless (1) that official has personal
knowledge of the facts at issue; (2) extraordinary circumstances or a “special need” exists
for the deposition; and (3) the information is not available from an alternate source. In
re:USA, U.S. Environmental Protection Agency, 624 F.3d 1368, 1372 (11th Cir. 2010);
Franklin Sav. Assn. v. Ryan, 922 F.2d at 211; United States Parole Board v. Merhige,
487 F.2d 25, 29 (4th Cir. 1973); Byrd v. District of Columbia, 259 F.R.D. 1, 7 (D.D.C.
2009); United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 316, 321-22 (D.N.J.
2009); United States v. Wal-Mart Stores, 2002 WL 562301, *3 (D. Md. March 29, 2002);
and Energy Capital Corp. v. United States, 60 Fed. Cl. 315, 318 (U.S. Ct. Fed. Claims

5

2004).
In addition, the deposition may not delve into the mental processes or deliberative
processes of the deponent unless there is a prima facie showing of misconduct or
wrongdoing. Franklin Sav. Assn. v. Ryan, 922 F.2d at 211; Singer Sewing Mach. Co.
v. N.L.R.B., 329 F.2d 200, 208 (4th Cir. 1964); Texaco Puerto Rico, Inc. v. Dept. of
Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); Libertarian Party of Ohio v. Husted,
33 F.Supp.3d 914, 919 (S.D. Ohio 2014).
The deliberative process privilege is (1) qualified, Texas Puerto Rico, supra, at 885,
citing FTC v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir. 1984); (2) not
absolute, Id., citing First Eastern Corp. v. Mainwaring, 21 F.3d 465, 468 n. 5 (D.C. Cir.
1994); and (3) discretionary, Id., citing In re Franklin Nat’l Bank Sec. Litig., 478 F.Supp.
577, 582 (E.D. N.Y. 1979). “‘[W]here the documents sought may shed light on alleged
government malfeasance,’ the privilege is routinely denied. Franklin, 478 F.Supp. at 582;
see also Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401–03 (E.D. Mich. 1965) (‘the
real public interest under such circumstances is not the agency's interest in its
administration but the citizen's interest in due process’), aff'd, 377 F.2d 496 (6th Cir. 1967).”
Texas Puerto Rico, supra.
In Libertarian Party, supra, the Court set forth several factors for evaluating the
deliberative process privilege:
Many courts have held that the deliberative process privilege is a qualified
privilege. See, e.g., In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997);
Marriott Int'l Resorts, L.P. v. United States, 437 F.3d 1302, 1307 (Fed. Cir.

6

2006); F.T.C. v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir.
1984); E.E.O.C. v. Burlington N., 615 F.Supp.2d 717, 720 (W.D. Tenn.
2009), objections overruled sub nom. E.E.O.C. v. Burlington N. & Santa Fe
Ry. Co., 621 F.Supp.2d 603 (W.D. Tenn. 2009). There are several factors
to consider in determining whether the deliberative process privilege should
be overcome, including (1) the relevance of the evidence sought, (2) the
availability of other evidence, (3) the role of the government in the litigation,
and (4) the potential consequences of disclosure of the information. See,
e.g., F.T.C. v. Warner Commc'ns Inc., supra at 1161 (9th Cir. 1984)
(“Among the factors to be considered in making this determination are: 1) the
relevance of the evidence; 2) the availability of other evidence; 3) the
government's role in the litigation; and 4) the extent to which disclosure would
hinder frank and independent discussion regarding contemplated policies and
decisions”) (citations omitted); see also E.E.O.C. v. Burlington N., supra at
720–21 (“In balancing these competing interests, the court should consider
several factors, including (1) the relevance of the evidence sought to be
protected; (2) the availability of other evidence; (3) the seriousness of the
litigation and the issues involved; (4) the role of the government in the
litigation; and (5) the possibility of future timidity by government employees
who will be forced to recognize that their secrets are violable”) (citations
omitted); see also United States v. Farley, 11 F.3d 1385, 1389 (7th Cir.
1993) (deliberative process privilege can be overcome if the party requesting

7

the documents can make “a showing that his need for the documents
outweighed the government's interest in not disclosing them” (citation omitted)).
Plaintiffs are correct that possible government misconduct or
deficiencies in the deliberative process are factored into any analysis and,
where present, weigh in favor of denying the privilege. “[W]here there is
reason to believe the documents sought may shed light on government
misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding
internal government deliberations in this context does not serve ‘the public's
interest in honest, effective government.’” In re Sealed Case, 121 F.3d 729,
738 (D.C. Cir. 1997) (quoting Texaco Puerto Rico, Inc. v. Department of
Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995) (additional citations
omitted)); Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs.,
903 F.Supp.2d 59, 66 (D.D.C. 2012) (quoting In re Sealed Case, 121 F.3d
at 738); see also Bank of Dearborn v. Saxon, 244 F.Supp. 394, 401–03
(E.D. Mich. 1965) (“the real public interest under such circumstances is not
the agency's interest in its administration but the citizen's interest in due
process”), aff'd 377 F.2d 496 (6th Cir. 1967). However, a showing of
misconduct is not required in order for the privilege to be overcome.
33 F.Supp.3d at 919-20 (S.D. Ohio 2014).
In examining the alternatives to deposition, this Court agrees with Judge Peen that
“Depositions are the most efficient means of discovery for the plaintiffs in the context of the
instant case. Moreover, depositions are the preferred means of discovery in the Rule 56(f)

8

context. “Because the exigencies of time are paramount; discovery [under Rule 56(f)]
through the use of depositions is appropriate.”

Murphy v. Federal Bureau of

Investigation, 490 F.Supp. 1134, 1138 (D.D.C. 1980). “Depositions are also more reliable,
as they are taken under oath, and the deponents' responses are relatively spontaneous.”
Am. Broad. Companies, Inc. v. U.S. Info. Agency, 599 F.Supp. 765, 769 (D.D.C. 1984).
Finally, this Court notes that in Byrd v. District of Columbia, 259 F.R.D. 1, 7
(D.D.C. 2009), the District Court stated that “[a]lthough ‘common sense seems to suggest
that administration heads ... should not be called to testify personally unless a clear
showing is made that such a proceeding is essential to prevent prejudice or injustice to the
party who would require it,’ Davis [v. United States], 390 A.2d at 981 [(D.C. 1978)] (citing
Wirtz v. Local 30, Int'l Union of Operating Eng'rs, 34 F.R.D. 13 (S.D. N.Y. 1963)),
protective orders that completely prohibit a deposition should be granted only as an
‘extraordinary measure which should be resorted to only in rare occasions,’ Jennings [v.
Family Mgmt], 201 F.R.D. at 275 [(D.D.C. 2001)].”
Having reviewed the law applicable to the issue, this Court must next examine the
reasons given by the plaintiffs to support extraordinary circumstances and to overcome the
deliberative privilege.
First, by statute, the Administrator is responsible for conducting the evaluations in
question: “The Administrator shall 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

9

such administration or enforcement.” 42 U.S.C. § 7621(a).
The Administrator has not delegated that responsibility to anyone else within the
EPA. She has issued no instructions, orders, or guidance for subordinate to comply with
Section 321(a) or ensure that others do so. In short, unlike most cases involving statutory
nondiscretionary duties, the Administrator is the only person with actual responsibility to
comply with Section 321(a). Consequently, like the government official in American
Broadcasting Companies, supra, the Administrator’s personal responsibility for
compliance with Section 321(a) makes her uniquely involved in this litigation.
Second, the Government itself has said that she has personally been involved with
discussions about Section 321(a). United States’ Objections and First Supplemental
Responses to Plaintiffs’ First Set of Discovery Requests, June 12, 2015 Supplemental
Response to Interrogatory No. 9 (responding that the Administrator and her staff have
discussed Section 321(a) with three individuals).
Third, in her communications with Congress, Ms. McCarthy has discussed § 321(a).
In a letter to Senator Orrin Hatch and other Senators dated October 26, 2009, Ms.
McCarthy, then Assistant Administrator, responding to a request for the results of
continuing Section 321(a) evaluation of potential loss or shift of employment which may
result from the suite of regulations the U.S. EPA has proposed or finalized, stated that
“EPA has not conducted a section 321 investigation of its greenhouse gas actions.” [Docs.
157-3, 157-4, 157-5, 157-6, 157-7].
In a letter to Congressman Greg Walden and other Congressmen dated January 12,
2010, and the answers appended thereto, Ms. McCarthy, then Assistant Administrator, in

10

response to the question, “With regard to Section 321 of the Clean Air Act, does EPA
comply with this provision? If yes, how does EPA comply? If no, please explain,” provided
the following answer:
CAA section 321 authorizes the Administrator to investigate, report and make
recommendations regarding concerns raised by employers or employees that
requirements under the Clean Air Act will adversely affect employment.
Section 321(a) provides for “continuing evaluations potential loss or shifts of
employment which may result from the administration or enforcement of the
provision of the Act and applicable implementation plans, including where
appropriate, investigating threatened plant closures or reductions in
employment allegedly resulting from such administrative enforcement.” . . .
CAA section 321 was added in the 1977 CAA Amendments. Both the
House and Senate Committee Reports for the 1977 amendments describe
the purpose of section 321 as addressing situations where employers make
allegations that environmental regulations will jeopardize employment
possible in order to stimulate union or other public opposition to
environmental regulations. The section was intended to create a mechanism
to investigate and resolve those allegations. The section was also designed
to provide individual employees whose job was threatened or lost allegedly
due to environmental regulations with a mechanism to have EPA investigate
those allegations. The committee reports do not describe the provision as
applying broadly to all regulations or implementation plans under the CAA.
In keeping with congressional intent, EPA has not interpreted CAA
11

section 321 to require EPA to conduct employment investigations in taking
regulatory actions. Conducting such investigations as part of rulemakings
would have limited utility since section 321(d) expressly prohibits EPA (or the
States, in case of applicable implementation plans) from “modifying or
withdrawing any requirement imposed or proposed to be imposed under the
Act” on the basis of such investigations. As noted above, section 321 was
instead intended to protect employees in individual companies by providing
a mechanism for EPA to investgate allegations - typically made by employers
- that specific requirements, including enforcement actions, as applied to
those individual companies, would result in layoffs.2
[Docs. 157-8, 157-9].
In a letter to Congressman Joe Barton and another Congressman dated August 3,
2010, Ms. McCarthy, then Assistant Administrator, stated that no analysis of potential
employment impacts of the ozone NAAQS (National Ambient Air Quality Standards) was
conducted. [Doc. 157-10].
In a letter to Congressman Darrell Issa dated June 22, 2011, and the answers
appended thereto, Ms. McCarthy, then Assistant Administrator, included the following:
Section 321 of the Clean Air Act authorizes the Administrator to investigate,
report and make recommendations regarding employer or employee
concerns that requirements under the Clean Air Act will adversely affect

2

While a masterpiece of wholly unresponsive “government-speak,” this Court takes
the response as an admission that as of January 12, 2010, the EPA had conducted NO
section 321 investigations.
12

employment. Section 321(a) provides for “continuing evaluations potential
loss or shifts of employment which may result from the administration or
enforcement of the provision of the Act and applicable implementation plans,
including where appropriate, investigating threatened plant closures or
reductions in employment allegedly resulting from such administrative
enforcement.” . . .
Section 321 was added in the 1977 CAA Amendments. Both the
House and Senate Committee Reports for the 1977 amendments describe
the purpose of section 321 as addressing situations where employers make
allegations that environmental regulations will jeopardize employment
possible in order to stimulate union or other public opposition to
environmental regulations. The section was intended to create a mechanism
to investigate and resolve those allegations. The section was also designed
to provide individual employees whose jobs were threatened or lost allegedly
due to environmental regulations with a mechanism to have EPA investigate
those allegations. The legislative history makes clear that Congress intended
to provide a mechanism to respond to specific allegations in particular cases:
“In any particular case in which a substantial job loss is
threatened, in which a plant closing is blamed on Clean Air Act
requirements, or possible new construction is alleged to have
been postponed or prevented by such requirements, the
committee recognizes the need to determine the truth of these
allegations. For this reason, the committee agreed to section
13

304 of the bill [which became section 321 of the Act], which
establishes a mechanism for determining the accuracy of any
such allegation.” H.R. Rep. 95-294, at 317; see also S. Rep.
95-127, at 1474-76.
The committee reports do not describe the provision as applying broadly to
all regulations or implementation plans under the CAA.
In keeping with congressional intent, EPA has not interpreted section
321 to require the Agency to conduct employment investigations in taking
regulatory actions. Conducting such investigations as part of rulemakings
would have limited utility since section 321(d) expressly prohibits EPA (or the
States, in case of applicable implementation plans) from “modifying or
withdrawing any requirement imposed or proposed to be imposed under the
Act” on the basis of such investigations. As noted above, section 321 was
instead intended to protect employees in individual companies by providing
a mechanism for EPA to investigate allegations - typically made by
employers - that specific requirements, including enforcement actions, as
applied to those individual companies, would result in layoffs. The EPA has
not received any request for any such investigation with regard to its GHG
[Green House Gas] regulations.3
[Doc. 157-11].

3

Again, a masterpiece of wholly unresponsive “government-speak,” which this Court
takes the response as an admission that as of June 22, 2011, the EPA had conducted NO
section 321 investigations.
14

In a letter to Senator Vitter dated March 6, 2012, and the answers appended thereto,
Ms. McCarthy, then Assistant Administrator, in response to the request, “Please provide
the results of your continuing Section 321(a) evaluation of potential loss or shifts of
employment which may result from the suite of regulations EPA has proposed or finalized
that address CSAPR and Utility MACT under provisions of the Clean Air Act, including
threatened plant closures or reductions in employment that may result from the
administration or enforcement of such regulations. As you know, Section 321(a) of the Act
(42 U.S.C. § 7621(a)) states: The Administrator shall conduct continuing evaluations
potential loss or shifts of employment which may result from the administration or
enforcement of the provision of the Act and applicable implementation plans, including
where appropriate, investigating threatened plant closures or reductions in employment
allegedly resulting from such administration or enforcement, stated:
Clean Air Act section 321 does not require the EPA to provide any further
employment impact analyses of the clean air rules.

In keeping with

congressional intent, EPA has not interpreted section 321 to require the EPA
to conduct employment investigations in taking regulatory actions.
Conducting such investigations as part of rulemakings would have limited
utility since section 321(d) expressly prohibits EPA (or the States, in case of
applicable implementation plans) from “modifying or withdrawing any
requirement imposed or proposed to be imposed under the Act” on the basis
of such investigations.

Section 321 was instead intended to protect

employees in individual companies by providing a mechanism for EPA to
investigate allegations - typically made by employers - that specific
15

requirements, including enforcement actions, as applied to those individual
companies, would result in layoffs. The EPA has not received any request
for any such investigation with regard to these regulations.
[Doc. 157-12].
In the hearing on the nomination of Ms. McCarthy to be Administrator of the EPA,
in the written comments by Senator Vitter, Ms. McCarthy was asked whether the EPA had
ever investigated a plant closure or reduction in employment to see what role, if any, the
administration or enforcement of the Clean Air Act played. Her response was:
CAA section 321 authorizes the Administrator to investigate, report and make
recommendations regarding employer or employee allegations that
requirements under the Clean Air Act will adversely affect employment. In
keeping with congressional intent, EPA has not interpreted this provision to
require EPA to conduct employment investigations in taking regulatory
actions. Section 321 was instead intended to protect employees in individual
companies by providing a mechanism for EPA to investigate allegations that
specific requirements, including enforcement actions, as applied to those
individual companies, would result in layoffs. EPA has found no records
indicating that any Administration since 1977 has interpreted section 321 to
require job impacts analysis for rulemaking actions. . .. The Agency could
not find any records of any requests for section 321 investigation of job
losses alleged to be related to regulation-induced plant closure.
[Doc. 157-13, p. 5].
In the written comments by Senator Inhofe, Ms. McCarthy was asked as follows:
16

Section 321
Section 321 of the Clean Air Act (42 U.S.C. § 7621) requires the Administrator to “conduct
continuing evaluations potential loss or shifts of employment” which may result from the
administration or enforcement of regulations issued under the Act, “including where
appropriate, investigating threatened plant closures or reductions in employment allegedly
resulting from such administration or enforcement.” Most other major environmental
statutes contain similar language to Section 321.
17.

Inhofe 17. Do you believe the Agency has an obligation to conduct continuing

evaluations of the impact its regulations could have on jobs?
CAA section 321 authorizes the Administrator to investigate, report and make
recommendations regarding employer or employee concerns that
requirements under the Clean Air Act will adversely affect employment. In
keeping with congressional intent, EPA has not interpreted this provision to
require EPA to conduct employment investigations in taking regulatory
actions. Section 321 consistently has been interpreted by EPA to provide a
mechanism for investigating specific allegations by particular employers or
employees that specific requirements applied to individual companies would
result in layoffs. EPA has found no records indicating that any Administration
since 1977 has interpreted section 321 to require job impacts analysis for
rulemaking actions.
[Doc. 157-13].
In a series of emails collected as Document 157-14, the contributors agree that no
analyses under the authority of Section 321 of the Clean Air Act have ever been performed
17

by EPA.
In response to a Freedom of Information request made by William Kovacs of the
U.S. Chamber of Commerce on September 14, 2012, seeking records pertaining to all
draft, interim final and final reports and/or evaluations prepared by the EPA pursuant to
section 321 of the Clean Air Act, the EPA responded:
After conducting searches, neither the Office of Air and Radiation nor the
Office of Policy were able to find any documents pertaining to your request.
[Doc. 157-16].
Finally, in the United States’ Response to Plaintiffs’ Second Set of Discovery
Requests, the EPA states that “the United States has conceded both that ‘it did not
interpret Section 321(a) as imposing a non-discretionary duty until this Court so held on
September 16, 2014' and that ‘none of the documents upon which it relies to demonstrate
its performance of the duty in Section 321(a) were prepared explicitly for that purpose or
labeled as Section 321(a) evaluations.” [Doc. 157-18].
The fair reading of these statements, many of which were made by Administrator
McCarthy, is that the EPA has never made any evaluations of job losses under § 321(a).
This is directly contrary to the position of the EPA in this case. In its Memorandum in
Support of the United States’ Motion for Summary Judgment [Doc. 76], the EPA states:
“EPA is entitled to summary judgment because it has conducted ‘continuing evaluations
of potential loss or shifts of employment which may result from the administration or
enforcement of the provision of this chapter and applicable implementation plans,’ as
required by Section 321(a) of the Clean Air Act (“CAA” or the “Act”), 42 U.S.C § 7621(a).”
The plaintiffs are entitled to explore these divergent positions. The Administrator
18

clearly has personal knowledge of the facts, the dichotomy in positions constitutes
extraordinary circumstances, and the apparent refusal of the Administrator to comply with
the terms of Section 321(a) provides sufficient prima facie evidence of wrongdoing such
that the plaintiffs will be able to probe her deliberative processes. Finally, this Court finds
that there is no viable alternative to the deposition of the Administrator.
With respect to the Motion to Stay, this Court will order that the deposition of Ms.
McCarthy may not be taken prior to December 4, 2015.4
For the reasons stated above, the United States’ Emergency Motion for Protective
Order Precluding the Deposition of EPA Administrator McCarthy [Doc. 147] is DENIED.
The United States’ Motion to Stay Administrator McCarthy’s Deposition [Doc. 155] is
DENIED. This Court will, however, stay the deposition of Administrator McCarthy until
December 4, 2015.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: November 12, 2015.

4

Inasmuch as the defendant has filed a separate mandamus proceeding with the
United States Court of Appeals for the Fourth Circuit, No. 15-2390, and imposed a deadline
of November 20, 2015, the stay granted should be sufficient.
19