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

Filing 71

MEMORANDUM ORDER DENYING MOTION TO DISMISS AND MOTION TO STAY DISCOVERY. Accordingly, The United States Motion to Dismiss Due to Lack of Article III Standing, filed by the EPA on December 23, 2014 59 is DENIED, and the Motion of the United States to Stay Discovery Pending Resolution of Dispositive Motion and Request for Expedited Proceeding, filed by the EPA on the same date 61 is DENIED AS MOOT. Signed by District Judge John Preston Bailey on 3/27/2015. (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 TO
DISMISS AND MOTION TO STAY DISCOVERY
Pending before this Court are The United States’ Motion to Dismiss Due to Lack of
Article III Standing, filed by the EPA on December 23, 2014 [Doc. 59] and the Motion of the
United States to Stay Discovery Pending Resolution of Dispositive Motion and Request for
Expedited Proceeding, filed by the EPA on the same date [Doc. 61]. With respect to the
Motion to Dismiss, the plaintiffs filed their Plaintiffs’ Response in Opposition to Defendant’s
Second Motion to Dismiss on January 23, 2015 [Doc. 65], and the EPA filed its United
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States’ Reply in Support of Motion to Dismiss due to Lack of Article III Standing on
February 17, 2015 [Doc. 70]. With respect to the Motion to Stay, the plaintiffs filed their
Plaintiffs’ Opposition to Defendant’s Motion to Stay Discovery on December 31, 2014 [Doc.
62], and the EPA filed the United States’ Reply in Support of Motion to Stay Discovery on
January 9, 2015 [Doc. 64]. Both Motions are ripe for decision and, for the reasons stated
below, will be denied.
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

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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].
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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. The plaintiffs filed their
Memorandum in Opposition to Defendant’s Motion to Dismiss the Complaint and Motion
to Strike Prayer for Injunctive Relief [Doc. 38] on July 25, 2014, and the EPA filed its Reply
Memorandum in Support of Defendant’s Motion to Dismiss the Complaint and Motion to
Strike Prayer for Injunctive Relief [Doc. 39] on August 11, 2014.
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.
On October 9, 2014, the EPA filed its United States’ Motion to Clarify the Court’s
September 16, 2014 Order [Doc. 50]. On October 14, 2014, the plaintiffs filed their
Memorandum in Opposition to Defendant’s Motion to Clarify [Doc. 51], and on October 17,
2014, the defendant filed its Reply to Plaintiffs’ Memorandum in Opposition to Defendant’s
Motion to Clarify [Doc. 52].
By Order entered October 24, 2014, this Court denied the Motion to Clarify [Doc.
53].
On December 23, 2014, the defendant filed the pending The United States’ Motion
to Dismiss Due to Lack of Article III Standing [Doc. 59]2, as well as its Motion of the United
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This Court is unclear why this Motion was not filed in conjunction with the prior
Motion to Dismiss for lack of jurisdiction. However, the issue is not waivable, since a Court
has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional
authority.” West Virginia Highlands Conservancy v. Johnson, 540 F.Supp.2d 125, 133
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States to Stay Discovery Pending Resolution of Dispositive Motion and Request for
Expedited Proceeding [Doc. 61]. On December 31, 2014, the plaintiffs filed their Plaintiffs’
Opposition to Defendant’s Motion to Stay Discovery [Doc. 62]. On January 9, 2015, the
EPA filed its United States’ Response in Support of Motion to Stay Discovery [Doc. 64].
On January 23, 2015, the plaintiffs filed Plaintiff’s Response in Opposition to Defendant’s
Second Motion to Dismiss [Doc. 65]. Finally, on February 17, 2015, the EPA filed United
States’ Reply in Support of Motion to Dismiss Due to Lack of Article III Standing.
Discussion
The Court in Mut. Funds Inv. Litig. v. AMVESCAP PLC, 529 F.3d 207 (4th Cir.
2008), spoke to the issue of Article III standing: “Article III standing is a fundamental,
jurisdictional requirement that defines and limits a court's power to resolve cases or
controversies ... and ‘the irreducible constitutional minimum of standing’ consists of injuryin-fact, causation, and redressability.” (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992)).
The doctrine of standing requires federal courts to satisfy themselves that “the
plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant
his invocation of federal-court jurisdiction.” Summers v. Earth Island Inst., 555 U.S. 488,
493 (2009), quoting Warth v. Seldin, 422 U.S. 490, 498–499 (1975).
As the Supreme Court has explained, “[n]o principle is more fundamental to the
judiciary's proper role in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811,
(D.D.C. 2008), quoting Grand Lodge of FOP v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.
2001). See Sasser v. EPA, 990 F.2d 127, 129 (4th Cir. 1993).
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818 (1997).

“Article III standing ... enforces the Constitution's case-or-controversy

requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004).
As the party invoking federal jurisdiction, the plaintiffs bear the burden of establishing
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If plaintiffs cannot
establish constitutional standing, their claims must be dismissed for lack of subject matter
jurisdiction. Cent. States Se. & Sw. Areas Health and Welfare Fund v. Merck-Medco
Managed Care, 433 F.3d 181, 198 (2nd Cir. 2005). “Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the case.” Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94 (1998) (citations omitted).
“To seek injunctive relief, a plaintiff must show that he is under threat of suffering
‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent,
not conjectural or hypothetical; it must be fairly traceable to the challenged action of the
defendant; and it must be likely that a favorable judicial decision will prevent or redress the
injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009), quoting Friends of
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180–181
(2000). See also Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712 (4th Cir.
2015). “This requirement assures that ‘there is a real need to exercise the power of judicial
review in order to protect the interests of the complaining party.’” Id., quoting Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974). “Where that need does
not exist, allowing courts to oversee legislative or executive action ‘would significantly alter
the allocation of power ... away from a democratic form of government,’” United States v.

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Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring).
Turning to the application of the law to the facts of this case, the Court must attempt
to capsulize the plaintiffs’ cause of action. In their Amended Complaint [Doc. 31], the
plaintiffs allege:
1.

That the plaintiffs combined employ over 7,200 workers and comprise the

largest underground coal mining operations in the United States;
2.

That the financial livelihood of the plaintiffs is dependent upon a continuing

domestic market for coal;
3.

That the actions of the EPA have caused a reduced market for coal, which

threatens the economic viability of the plaintiffs;
4.

That the EPA has failed to comply with the requirement under 18 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;”
5.

That if the EPA were to comply with the requirements of 18 U.S.C. § 7621,

the information would document the threatened business closures and consequent
unemployment, which could be used to convince the EPA, the Congress, and/or the
American public that the actions of the EPA have been harmful and must be changed.
In arguing that the plaintiffs lack standing, the EPA has raised the following:
1.

The allegation of a reduced market for coal is not fairly traceable to EPA’s

failure to conduct employment evaluations;
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2.

The allegations of a reduced market for coal cannot be redressed by a

favorable decision by this Court;
3.

The plaintiffs’ alleged injuries are not sufficient to establish standing;

4.

Plaintiffs fail to establish standing based upon informational injury because

18 U.S.C. § 7621 neither creates a right to information nor implicates fundamental rights;
5.

Plaintiffs have failed to allege a concrete, redressable injury caused by the

lack of employment evaluations;
6.

Plaintiffs do not have procedural standing because § 7621 is not a procedural

requisite to any EPA action; and
7.

Plaintiffs do not have procedural standing because § 7621 was not designed

to protect their interests.
For the reasons stated below, this Court finds that the plaintiffs have established
standing to proceed with this action. This Court is aware that “[W]hen the plaintiff is not
himself the object of the government action or inaction he challenges, standing is not
precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Summers v. Earth
Island Inst., 555 U.S. 488, 493-94 (2009) (quoting Lujan v. Defenders of Wildlife, 504
U .S. 555, 562 (1992)).
The fact that the failure to perform employment evaluations may affect a large
number of persons or entities is not fatal to the plaintiffs’ standing. “At bottom, ‘the gist of
the question of standing’ is whether petitioners have ‘such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination.’ Baker v. Carr, 369

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U.S. 186, 204 (1962). As Justice Kennedy explained in his Lujan concurrence:
While it does not matter how many persons have been injured by the
challenged action, the party bringing suit must show that the action injures
him in a concrete and personal way. This requirement is not just an empty
formality. It preserves the vitality of the adversarial process by assuring both
that the parties before the court have an actual, as opposed to professed,
stake in the outcome, and that the legal questions presented . . . will be
resolved, not in the rarified atmosphere of a debating society, but in a
concrete factual context conducive to a realistic appreciation of the
consequences of judicial action.” 504 U.S. at 581 (internal quotation marks
omitted).”
Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007).
In White Oak Realty, LLC v. U.S. Army Corps of Eng’rs, 2014 WL 4387317 (E.D.
La. September 4, 2014), the Court noted that “economic injury from business competition
created as an indirect consequence of agency action can serve as the required ‘injury in
fact,’” citing Envtl. Defense Fund v. Marsh, 651 F.2d 983, 1003 (5th Cir. 1981), and that
“a company's interest in marketing its product free from competition” is a “legally cognizable
injur[y]” for purposes of Article III standing, citing Lujan, 504 U.S. at 578.
Based upon the foregoing authority, this Courts finds that the plaintiffs have alleged
a sufficient concrete and particularized injury in fact.
In Bennett v. Spear, 520 U.S. 154 (1997), the Court rejected an argument by the
Government that the fairly traceable requirement is satisfied only by a proximate cause

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analysis. The Bennett Court stated that “[t]his wrongly equates injury ‘fairly traceable’ to
the defendant with injury as to which the defendant's actions are the very last step in the
chain of causation. While, as we have said, it does not suffice if the injury complained of
is ‘th[e] result [of] the independent action of some third party not before the court,’
Defenders of Wildlife, supra, at 560–561 (emphasis added) (quoting Simon v. Eastern
Ky. Welfare Rights Organization, 426 U.S. 26, 41–42 (1976)), that does not exclude
injury produced by determinative or coercive effect upon the action of someone else.” 520
U.S. at 168-69.
Similarly, in Lansdowne on the Potomac Homeowners Ass'n, Inc. v. OpenBand
at Lansdowne, LLC, 713 F.3d 187, 195 (4th Cir. 2013), the Fourth Circuit stated
“OpenBand's mistake, in other words, is to ‘equate[ ] injury “fairly traceable” to the
defendant with injury as to which the defendant's actions are the very last step in the chain
of causation.’ Bennett v. Spear, 520 U.S. 154, 168–69 (1997). But as the Supreme Court
has explained, the causation element of standing is satisfied not just where the defendant's
conduct is the last link in the causal chain leading to an injury, but also where the plaintiff
suffers an injury that is ‘produced by [the] determinative or coercive effect’ of the
defendant's conduct ‘upon the action of someone else.’ Id. at 169.” 713 F.3d at 197.
In Competitive Enterprise Inst. v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990), the
District of Columbia Circuit stated:
To satisfy the causation and redressability requirements, Consumer Alert
must show that its members' restricted opportunity to purchase larger
passenger vehicles is fairly traceable to the CAFE standard as set by NHTSA

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and is likely to be ameliorated by a judicial ruling directing the agency to take
further account of safety concerns.
We note at the outset that the standing determination must not be
confused with our assessment of whether the party could succeed on the
merits. See Women's Equity Action League v. Cavazos, 879 F.2d 880
(D.C. Cir. 1989); Public Citizen v. Federal Trade Comm'n, 869 F.2d 1541,
1549 (D.C. Cir. 1989). For standing purposes, petitioners need not prove a
cause-and-effect relationship with absolute certainty; substantial likelihood
of the alleged causality meets the test. Duke Power Co. v. Carolina
Environmental Study Group, 438 U.S. 59, 75 n. 20 (1978); see also
Autolog Corp. v. Regan, 731 F.2d 25, 31 (D.C. Cir. 1984). This is true even
in cases where the injury hinges on the reactions of third parties, here the
auto manufacturers, to the agency's conduct.

See National Wildlife

Federation v. Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988). In such cases, the
alleged injury must be traced back through the actions of the intermediary
parties to the challenged government decision. See Public Citizen, 869
F.2d at 1547 n. 9. This case falls well within the range of those cases in
which the government's action has been found substantially likely to cause
the petitioners' injury despite the presence of intermediary parties. See
National Wildlife Federation, 839 F.2d at 706–16 (environmental
organization had standing where challenged mining regulations, as
interpreted and applied by the states and mining industry, could cause injury

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to its members' use and enjoyment of the environment); Community
Nutrition v. Block, 698 F.2d 1239, 1248 (D.C. Cir. 1983), rev'd on other
grounds, 467 U.S. 340 (1984) (within complex structure of dairy market,
consumers' contention that if milk handlers were not required to make a
compensatory payment they would pass the savings on to consumers was
reasonable).
901 F.2d at 113-14.
In this case, the plaintiffs have alleged that the actions of the EPA have had a
coercive effect on the power generating industry, essentially forcing them to discontinue
the use of coal. This Court finds these allegations sufficient to show that the injuries
claimed by the plaintiffs are fairly traceable to the actions of the EPA. While the EPA
argues that such would only be traceable to the earlier actions of the EPA rather than the
failure of the EPA to conduct employment evaluations, this Court cannot agree. The
claimed injuries, while in part traceable to the prior actions of the EPA, may also be fairly
traceable to the failure of the EPA to conduct the evaluations. Congress’ purpose in
enacting the requirement for the evaluations was to provide information which could lead
the EPA or Congress to amend the prior EPA actions.
This Court also finds that the injuries are redressable. If this Court were to grant the
requested injunctive relief to require the EPA to perform its duty under 18 U.S.C. § 7621,
the results of the inquiry may have the effect of convincing the EPA, Congress, and/or the
American public to relax or alter EPA’s prior decisions.
Finally, this Court finds that the plaintiffs fall within the zone of interests protected

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by the statute. One purpose of 18 U.S.C. § 7621 is to protect industries, employers and
employees from the untoward effects of prior EPA actions. As such employers, the
plaintiffs clearly fall within that zone. See Motor Coach Industries, Inc. v. Dole, 725 F.2d
958, 963 (4th Cir. 1984).
The plaintiffs also assert procedural and informational injury as a basis for their
standing. The procedural standing argument is premised upon the fact that the EPA has
failed to conduct the employment evaluations. It is clear that an individual can enforce
procedural rights, provided that the procedures sought to be enforced are designed to
protect his interest. Lujan, 504 U.S. at 573 n. 8.
“There is this much truth to the assertion that ‘procedural rights’ are special: The
person who has been accorded a procedural right to protect his concrete interests can
assert that right without meeting all the normal standards for redressability and immediacy.
Thus, under our case law, one living adjacent to the site for proposed construction of a
federally licensed dam has standing to challenge the licensing agency's failure to prepare
an environmental impact statement, even though he cannot establish with any certainty that
the statement will cause the license to be withheld or altered, and even though the dam will
not be completed for many years.” Id. n. 7.
In Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court stated that “a
litigant to whom Congress has accorded a procedural right to protect his concrete interests,
—here, the right to challenge agency action unlawfully withheld—can assert that right
without meeting all the normal standards for redressability and immediacy. When a litigant
is vested with a procedural right, that litigant has standing if there is some possibility that

12

the requested relief will prompt the injury-causing party to reconsider the decision that
allegedly harmed the litigant.

[Lujan, at 560-61], see also Sugar Cane Growers

Cooperative of Fla. v. Veneman, 289 F.3d 89, 94–95 (D.C. Cir. 2002) (‘A [litigant] who
alleges a deprivation of a procedural protection to which he is entitled never has to prove
that if he had received the procedure the substantive result would have been altered. All
that is necessary is to show that the procedural step was connected to the substantive
result’). 549 U.S. at 517-18 (interior citations omitted). See also Pye v. United States,
269 F.3d 459, 471 (4th Cir. 2001) (where the plaintiffs validly assert a procedural injury,
they need not meet the normal standards for redressability and immediacy).
“The requirements for standing differ where, as here, plaintiffs seek to
enforce procedural (rather than substantive) rights. When plaintiffs challenge
an action taken without required procedural safeguards, they must establish
the agency action threatens their concrete interest. Fla. Audubon Soc'y [v.
Bentsen], 94 F.3d [658] at 664 [D.C. Cir. 1996]. It is not enough to assert ‘a
mere general interest in the alleged procedural violation common to all
members of the public.’ Id. Once that threshold is satisfied, the normal
standards for immediacy and redressability are relaxed. Lujan, 504 U.S. at
572 n. 7. Plaintiffs need not demonstrate that but for the procedural violation
the agency action would have been different. Ctr. for Law & Educ. v. Dep't
of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). Nor need they establish
that correcting the procedural violation would necessarily alter the final effect
of the agency's action on the plaintiffs' interest. Id. Rather, if the plaintiffs can

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‘demonstrate a causal relationship between the final agency action and the
alleged injuries,’ the court will ‘assume[ ] the causal relationship between the
procedural defect and the final agency action.’ Id.”
Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014).
With regard to redressability, the District of Columbia Circuit has recently stated that:
Plaintiffs asserting a procedural rights challenge need not show the agency
action would have been different had it been consummated in a procedurally
valid manner—the courts will assume this portion of the causal link. Ctr. for
Law & Educ., 396 F.3d at 1160. Rather, plaintiffs simply need to show the
agency action affects their concrete interests in a personal way. In other
words, the intervenors' argument that the agency action was lawful or correct
on the merits—and therefore that it did not injure the plaintiffs—is
substantially the same as arguing the omitted procedure would not have
affected the agency's decision. This is precisely the argument a defendant
cannot make in a procedural rights challenge. Cf. Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (“The
relevant showing for purposes of Article III standing ... is not injury to the
environment but injury to the plaintiff. To insist upon the former rather than
the latter as part of the standing inquiry ... is to raise the standing hurdle
higher than the necessary showing for success on the merits in an action
alleging noncompliance with a[ ] [discharge] permit.”).
Mendoza, 754 F.3d at 1012-13.

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In West Virginia Assoc. of Community Health Centers, Inc. v. Heckler, 734 F.2d
1570 (D.C. Cir. 1984), the District of Columbia Circuit found that the plaintiffs had standing
to challenge DHHR’s determination of the amount of funding to be allocated to West
Virginia. The Court found redressability in the fact that the providers were denied the ability
to compete for funding. The Court stated:
To invoke federal jurisdiction, a party must show at a minimum that the
challenged actions have caused it injury that is likely to be redressed by a
favorable judicial decision. Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982). The Secretary argues that appellants have not satisfied these
requirements, inasmuch as they have failed to demonstrate that a judicial
decision mandating an increase in West Virginia's PCBG funding would
redound to their benefit. In this regard, the Secretary relies principally upon
the fact that West Virginia would have complete discretion to award any
additional funding it might receive to other CHC's within the State which are
not parties to this lawsuit. In response to this line of reasoning, appellants
argue that they have been injured by being denied an opportunity to compete
for this increased funding, and that to have standing they need not
demonstrate that they would actually receive the additional funding. Our
examination of applicable law mandates the conclusion that appellants do
indeed have standing to sue.
734 F.2d at 1574 (footnotes omitted).

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The rule is the same in the Fourth Circuit. “We note that the plaintiffs need not show
that the result of the agency's deliberations will be different if the statutory procedure is
followed,” Pye, supra at 472, citing Federal Election Com’n. v. Akins, 524 U.S. 11, 25
(1998).
The EPA argues that in order to support procedural standing, the procedure violated
must be a prerequisite to a final agency action. While many, if not all, of the cases cited
by plaintiffs involve procedures which preceded an agency action, this Court has not found
a case which so limits the doctrine. Indeed, had the plaintiffs been denied a right to appeal
a final agency action, could the EPA seriously deny that there was a procedural violation?
The procedure mandated by 18 U.S.C. § 7621 is designed to prompt a second look at final
agency action when one can calculate the damage (or lack thereof) to employment and the
economy. The denial of the benefit of the evaluations required by 18 U.S.C. § 7621 is
sufficient to support procedural standing.
As noted above, the plaintiffs also assert informational standing. “The Supreme
Court consistently has held that a plaintiff suffers an Article III injury when he is denied
information that must be disclosed pursuant to a statute, notwithstanding ‘[t]he fact that
other citizens or groups of citizens might make the same complaint after unsuccessfully
demanding disclosure.’ Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 449–50
(1989); see also Akins, 524 U.S. at 21–25 (holding that a group of voters had a concrete
injury based upon their inability to receive certain donor and campaign-related information
from an organization); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74 (1982)
(concluding that deprivation of information about housing availability was sufficient to

16

constitute an Article III injury). What each of these cases has in common is that the
plaintiffs (1) alleged a right of disclosure; (2) petitioned for access to the concealed
information; and (3) were denied the material that they claimed a right to obtain. Their
informational interests, though shared by a large segment of the citizenry, became
sufficiently concrete to confer Article III standing when they sought and were denied access
to the information that they claimed a right to inspect.
This Court finds that the plaintiffs have also established standing under the
informational doctrine. The statute requires the EPA to gather certain information and
conduct evaluations, which it has refused to do. The plaintiffs may be entitled to the
information which has not been collected or analyzed and have requested the same. This
is sufficient to support standing.
This Court is unpersuaded by the EPA’s argument that had the EPA conducted the
employment evaluations, the plaintiffs would not be entitled to the information. The EPA
fails to point out any theory by which this information could be secreted from the plaintiffs
or any other person. We do not live in a secret society, and the plaintiffs would have the
ability to receive the information through the Freedom of Information Act, if not through
other means.
For the reasons stated above, this Court finds that the plaintiffs have the requisite
standing to proceed with this action. Accordingly, The United States’ Motion to Dismiss
Due to Lack of Article III Standing, filed by the EPA on December 23, 2014 [Doc. 59] is
DENIED, and the Motion of the United States to Stay Discovery Pending Resolution of
Dispositive Motion and Request for Expedited Proceeding, filed by the EPA on the same

17

date [Doc. 61] is DENIED AS MOOT.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: March 27, 2015.

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