Reply Brief — Murray Energy Corporation, et al., Petitioners v. Scott Pruitt, Administrator, Environmental Protection Agency

No. 17-478

IN THE

Supreme Court of the United States

___________________________

MURRAY ENERGY CORPORATION, et al.,

Petitioners,

v.

SCOTT PRUITT, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY

Respondent.

___________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

___________________________

REPLY

___________________________

JOHN LAZZARETTI

Counsel of Record

SQUIRE PATTON BOGGS (US) LLP

4900 Key Tower

127 Public Square

Cleveland, Ohio 44114

(216) 479-8350

john.lazzaretti@squirepb.com

Counsel for Petitioners

December 22, 2017

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ....................................... ii

REPLY .........................................................................1

I.

CERTIORARI IS NEEDED TO PRESERVE

CITIZEN OVERSIGHT OF EPA’S

COMPLIANCE WITH ITS STATUTORY

MANDATES ................................................... 2

II. ABSENT CERTIORARI, EPA WILL NOT

EVALUATE JOB LOSSES AS REQUIRED

BY SECTION 321(A). .................................... 6

III. STANDING DOES NOT COMPLICATE

THE COURT’S REVIEW ............................. 10

CONCLUSION ..........................................................12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bennett v. Spear,

520 U.S. 154 (1997) ................................................ 9

Larson v. Valente,

456 U.S. 228 (1982) .............................................. 11

Lexmark Int’l v. Static Control,

___ U.S. ___, 134 S.Ct. 1377 (2014) ....................... 5

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .............................................. 11

Lincoln v. Vigil,

508 U.S. 182 (1993) ................................................ 9

Mach Mining, LLC v. EEOC,

___ U.S. ___, 135 S. Ct. 1645 ................................. 9

Richlin Sec. Service Co. v. Chertoff, 553

U.S. 571, 590 (2008) ............................................... 5

Samantar v. Yousuf,

560 U.S. 305 (2010) ................................................ 5

Wachovia Bank, N.A. v. Schmidt,

546 U.S. 303 (2006) ................................................ 5

iii

Constitutional Provision

U.S. CONST. Art. III ................................................... 10

Statutes

Clean Air Act, 42 U.S.C. §§ 7401-7671q:

42 U.S.C. § 7604 ............................................... 2-4, 9

42 U.S.C. § 7621 ............................................. passim

Administrative Procedure Act

5 U.S.C. §§ 551-559 ................................................. 4

Legislative Materials

H.R. REP. 91-1783, (Conf. Rep.),

reprinted in 1 LEG. HIST. OF THE

CLEAN AIR ACT AMENDMENTS of 1970

(1970). ..................................................................... 3

H. Consideration of H.R. REP. 91-1783,

(Conf. Rep.) reprinted in 1 LEG. HIST.

OF THE CLEAN AIR ACT AMENDMENTS

of 1970 (1970). ........................................................ 3

H.R. REP. NO. 95-294 (1977), as reprinted in

1977 U.S.C.C.A.N. 1395....................................... 11

S. REP. NO. 101-228 (1989) .......................................3-4

iv

Miscellaneous

U.S. EPA, Final Report on Review of

Agency Actions that Potentially

Burden the Safe, Efficient

Development of Domestic Energy

Resources Under Executive Order

13783, (Oct. 25, 2017),

https://www.epa.gov/sites/production

/files/2017-10/documents/eo-13783final-report-10-25-2017.pdf................................ 1, 6

1

REPLY

This case presents anything but the run-of-themill decision EPA suggests. In the interest of

reducing the judiciary’s role in agency oversight, the

Fourth Circuit overrode the plain meaning of the

Clean Air Act’s citizen suit provision and barred

review of EPA’s refusal to comply with an express

statutory mandate. Doing so threatens to create a

safe harbor from which EPA can perpetually avoid

its statutory duties.

This case in particular demonstrates the

importance of citizen suit review. After almost three

years of litigation, the Northern District of West

Virginia ruled that EPA has not only failed to comply

with § 321(a) of the Clean Air Act, but that it is

hostile to compliance and will not comply absent a

court order. Despite a statutory requirement to

conduct continuing evaluations of job loss; despite

publicly acknowledging the importance of the

information required;1 despite 17 states filing an

amicus brief on the value of § 321(a) to them and

their citizens; EPA has not taken a single overt act to

evaluate the job losses it has caused and continues to

cause, in the coal industry or elsewhere. Now in its

Response, EPA indicates once again that it has no

intention of complying with § 321(a) going forward.

U.S. EPA, Final Report on Review of Agency Actions that

Potentially Burden the Safe, Efficient Development of Domestic

Energy Resources Under Executive Order 13783, at 6 (Oct. 25,

2017), https://www.epa.gov/sites/production/files/2017-10/documents/eo-13783-final-report-10-25-2017.pdf

(last

visited

December 21, 2017) (“EPA Report”).

1

2

In other words, absent certiorari, EPA will continue

to disregard its statutory duty to evaluate the job

losses it is causing.

Finally, EPA tries to muddy the water by raising

standing arguments that contradict the record. The

district court found three independent grounds for

standing and none of these findings were overturned

by the Court of Appeals. The case is ripe for review

and Petitioners have more than sufficient standing to

litigate the issues presented.

I. CERTIORARI IS NEEDED TO PRESERVE CITIZEN

OVERSIGHT OF EPA’S COMPLIANCE WITH ITS

STATUTORY MANDATES

Much of EPA’s brief attempts to bolster the

Fourth Circuit’s inappropriate narrowing of the scope

of citizen suit review under the Clean Air Act. This

is understandable, since citizen suits are a tool to

ensure EPA fulfills its statutory duties, especially

those the Agency is reluctant to perform. This,

however, is precisely why certiorari is needed. The

Fourth Circuit’s opinion narrows the scope of citizen

suit review in a manner Congress did not intend. In

doing so, the Fourth Circuit’s opinion damages the

public’s ability to ensure that EPA is fulfilling its

mandatory duties and removes an important check

on the Agency.

Under both the language chosen by Congress and

the legislative history, citizen suits are available to

require EPA to comply with its mandatory (i.e., nondiscretionary) duties under the Act. On its face,

§ 304(a)(2) allows “any person” to “commence a civil

3

action on his own behalf . . . against the

Administrator where there is alleged a failure of the

Administrator to perform any act or duty under this

chapter which is not discretionary with the

Administrator. . . .”

42 U.S.C. § 7604.

The

legislative history further confirms that judicial

review is available to enforce mandatory duties. See

H.R. Conf. Rep. 91-1783, 91st Cong. 2d Sess., Leg.

Hist. at 56 (“Suits against the Administrator [are]

limited to alleged failure to perform mandatory

functions to be performed by him.”); see also House

Consideration of the Report of the Conference

Committee, December 18, 1970, Leg. Hist. at 112

(“Citizen suits against the Administrator will be

limited to those duties which are mandatory under

the legislation. . . .”).

Moreover, while the Clean Air Act was amended

in 1990 to provide for claims of unreasonable delay in

the Agency’s exercise of its discretionary duties as

well, by so expanding citizen suit authority Congress

did not narrow the scope of judicial review that was

already available. Claims that “the failure to act is

not in accordance with law (for example, that it

violates an unqualified and specific ‘shall’ command

in the Act)” are still to be brought under § 304(a)(2).

S. REP. NO. 101-228, at 375 (1989) (“Committee

Report”) (emphasis added).2

2 EPA claims Petitioners contend every “legal requirement” or

“obligation” or act that does not fall within “enforcement

discretion” is a non-discretionary duty. See Response at 8, 11,

12.

Not so.

The statute is clear, however, that nondiscretionary duties are reviewable.

4

Further, the Committee Report provides that

where, for example, EPA disputes “both the claim of

unreasonable delay and the existence of any duty to

proceed,” the courts are not “limited solely to

imposing a deadline for the Administrator’s decision”

but “should also go on to define the scope of EPA’s

duty and specify the particular actions EPA must

take to fulfill that duty within the court-imposed

deadline.”

Committee Report at 375 (emphasis

added). Thus, in enjoining EPA to conduct the job

loss evaluations required by § 321(a), Judge Bailey

was providing precisely the type of relief intended.

EPA’s argument that cannons of construction that

should be used to narrow the scope of citizen suit

review runs into two problems. First, the Fourth

Circuit did not rely on the arguments EPA now

presents. The Fourth Circuit’s decision did not find

that Congress intended § 304(a)(2) to be read in pari

materia with the Administrative Procedure Act

(“APA”) (Response at 10), or that Congress simply

intended to codify the common law of mandamus

jurisdiction (Response at 11), or to make minor

adjustments to the scope of APA review (Response at

13). Rather, starting from the presumption that

§ 304(a)(2) must be construed “narrowly,” the Fourth

Circuit confined its scope “to the enforcement of

legally required acts or duties of a specific and

discrete nature” because doing so would address the

same “vice that Congress appeared intent on

avoiding by writing a non-discretionary requirement

into the statute.” App. 12. In doing so, the Fourth

Circuit went beyond the statute to hold that,

“although mandatory,” the courts cannot order EPA

5

to comply with § 321(a) because it “is not a specific

and discrete duty.” Response at 7. In doing so, the

Fourth Circuit violated this Court’s precedent. See,

e.g., Lexmark Int’l v. Static Control, __U.S.__, 134 S.

Ct. 1377, 1387-88 (2014).

Second, even if the Fourth Circuit had adopted

EPA’s new approach, it would still have acted

improperly by placing cannons of statutory

construction over the plain text and meaning of the

words chosen by Congress. Notably, the Court

makes this point in the very cases EPA cites.

In Samantar v. Yousuf, 560 U.S. 305, 320, n. 13

(2010), this Court recognized that there were

common law interpretations on the scope of sovereign

immunity, but declined to apply them at the expense

of the language chosen by Congress in the Foreign

Sovereign Immunities Act, holding that the Act “—

and not the pre-existing common law—indisputably

governs the determination of whether a foreign state

is entitled to sovereign immunity.” Id. at 312.

Similarly, in Richlin Sec. Service Co. v. Chertoff, this

Court declined to alter the plain meaning of the

Equal Access to Justice Act in favor of a reading that

would construe the waiver of sovereign immunity

narrowly. 553 U.S. 571, 590 (2008) (“There is no

need for us to resort to the sovereign immunity canon

because there is no ambiguity left for us to

construe.”). Further, in Wachovia Bank, N.A. v.

Schmidt, 546 U.S. 303, 316 (2006), this Court ruled

that the lower court had erred by over-relying on the

cannon of in pari materia.

6

Under either the reasoning set forth by the

Fourth Circuit or the arguments raised by EPA in its

Response, citizen suits are now unavailable for

mandatory duties that the lower courts find

unsuitable for judicial review. This contradicts the

language of the Clean Air Act and this Court’s

precedent.

II. ABSENT CERTIORARI, EPA WILL NOT EVALUATE

JOB LOSSES AS REQUIRED BY SECTION 321(A).

As EPA has demonstrated time and again, the

outcome of this case will determine whether EPA

conducts the job loss evaluations required by § 321(a)

of the Clean Air Act. EPA’s compliance will provide

important job loss information.

Judge Bailey’s

rulings further demonstrate that the courts are wellequipped to require EPA to comply.

When the Fourth Circuit issued its opinion, EPA

was days from disclosing the job losses it has caused

in the coal industry. Since that time, EPA has

produced no evaluation, of the coal industry or any

other industry. When EPA then issued a report to

the President acknowledging that “the Agency

historically has not conducted these assessments,”

agreeing with their importance, and stating “EPA

intends to conduct these evaluations consistent with

the statutes,” it appeared EPA might finally do what

Petitioners and many others have long sought. EPA

Report at 6. EPA’s Response, however, makes clear

this is not the case.

Now, EPA states its

acknowledgement to the President that it has not

complied must be “read in context,” to mean that it

has “not prepared documents with the intent of

7

Section [7621](a) compliance.” Response at 20, n.6

(emphasis in original). Otherwise, EPA intends to

keep doing what it is already doing. In other words,

absent a court order, EPA intends to do nothing to

actually comply with § 321(a).

EPA tries to minimize the significance of its

refusal to comply by claiming a “dearth of disputes”

over § 321(a). This, however, ignores the years of

effort by Petitioners, members of Congress, groups

such as the U.S. Chamber of Commerce, and the

many amici in this case.

As Judge Bailey

documented in his Final Order, members of Congress

have repeatedly asked EPA for the information

required by § 321(a). See App. 35-39. Even after

Judge Bailey issued his injunction, Administrator

Pruitt was asked at his confirmation hearing

whether EPA would do the evaluations required by

Judge Bailey.3

At the same time, the U.S. Chamber of Commerce

has diligently pursued the same information for its

members. See Final Order, at App. 40. When the

Chamber was told EPA had no § 321(a) evaluations,

the Chamber went so far as to produce its own model

evaluation. Dist. Ct. Doc. 256, at 33.

Seventeen states have likewise filed an amicus

curiae brief in support of certiorari “to underscore the

importance of this Court’s review because of the

unique challenges that States face when the EPA

unlawfully refuses to comply with Section 321—and,

3 See https://www.c-span.org/video/?c4648530/sen-capito-

questions (last visited December 21, 2017).

8

as here, the lowers courts stand silent in the face of

this blatant disregard for federal law.” Br. of Amici

Curiae States of West Virginia, and 16 Other States

in Support of Petitioners, at 2 (November 1, 2017).

The fact that the Fourth Circuit’s decision will deny

judicial relief after so many other avenues have been

tried is a reason for certiorari, not against it.

EPA’s reference to § 321(b) as a “ready tool” for

alternative relief is also ill-founded. Response at 19.

The one time EPA was asked to conduct a § 321(b)

hearing it did not do so.4 Further, as noted by

amicus curiae Cause of Action Institute, it has

petitioned EPA to initiate rulemaking to implement

procedures for investigations and hearings under

§ 321(b) because, to date, the agency has none. See

Brief of Amicus Curiae Cause of Action Institute in

Support of Petitioners at 8.

EPA is also wrong to suggest that the duty in

§ 321(a) is so unmanageable as to be beyond judicial

review. Response at 15-16. EPA is given a specific

task: evaluate the potential loss and shifts in

employment which may result from your

administration and enforcement of the Clean Air Act.

This is no less specific and discrete a duty than any

4 See “Role of Clean Air Act Requirements in Anaconda Copper

Company’s Closure of Its Montana Smelter and Refinery” (June

24, 1981), at 30 (“Both union representatives urged EPA to

conduct a public hearing on the matter. After carefully

considering the requests, EPA has determined there is no

reasonable ground for conducting a hearing at this time.”)

available at https://nepis.epa.gov/Exe/ZyPDF.cgi/91015FAO.

PDF?Dockey=91015FAO.PDF (last visited December 21, 2017).

9

other cited by EPA (see Response at 14-15).5 As

Judge Bailey found, there are even ready examples

in the record of the type of evaluations required. See

App. 33-35.

Perhaps more importantly, as discussed in the

Petition for Writ of Certiorari, at 24-27, the

discretion afforded EPA in how it complies with

§ 321(a) does not give EPA discretion to ignore

§ 321(a). See Mach Mining, LLC. V. EEOC, __U.S.__,

135 S. Ct. 1645, 1652 (2015); Bennett v. Spear, 520

U.S. 154, 172 (1997); Lincoln v. Vigil, 508 U.S. 182,

191 (1993).6

As complex as EPA tries to make the case below

sound, the district court was not ensnared in

“wholesale correction of alleged flaws” in an “entire

program.”

Response at 17 (internal quotations

omitted). EPA has no program. The district court

has jurisdiction to say so and to “order the

Administrator” to comply. 42 U.S.C. § 7604(a).

5 EPA’s sole point of distinction appears to be that these other

duties have statutory deadlines whereas § 321(a) imposes a

continuing duty. The presence or absence of a statutory

deadline, however, is not a test for determining whether agency

action can be judicially reviewed.

6 EPA’s attempt to distinguish Mach Mining is inapposite.

While the Civil Rights Act has a “detailed, multi-step

procedure” for enforcement, as the Court recognized, the

settlement provision at issue does not.

Similarly, EPA

identifies no meaningful distinction between the job loss and

shifts EPA must evaluate in § 321(a) and the “economic impact,

and any other relevant impact” required to be considered in

Bennett v. Spear, 520 U.S. at 172.

10

III. STANDING DOES

COURT’S REVIEW

NOT

COMPLICATE

THE

EPA cannot cloud the critical issues presented in

this case by reiterating standing arguments that

were rejected and contradict the record.

In the district court, EPA raised Article III

standing on several occasions.

Each time, the

district court rejected EPA’s arguments.

On

December 23, 2014, EPA filed its second motion to

dismiss based on a lack of Article III standing. App.

125. The district court denied the motion, finding

Petitioners had standing on multiple grounds. Id. at

125-144. Specifically, the district court found that

standing was independently supported by economic,

procedural, and informational injuries. Id. at 131-43.

In its motion for summary judgment, EPA again

challenged Petitioners’ standing and the district

court again rejected EPA’s arguments, finding, with

a fully-formed record before the court, that

Petitioners had standing. App. 77-95 ( “this Court

finds that the plaintiffs have established standing to

proceed with this action and will not alter its prior

decision finding standing.”). App. 80.

The Fourth Circuit expressly declined to address

any challenges to the district court’s “standing,

merits, and remedial rulings.” App. 16. Thus,

Petitioners come to this Court with their standing

established on the record and those findings

undisturbed by the court of appeals.

Moreover, the record solidly demonstrates injury,

traceability, and redressability.

See Lujan v.

11

Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

EPA claims there is no remedy to mitigate

Petitioners’ economic harm, Response at 21, but

Petitioners’ economic injuries and the likelihood that

they will be reduced by a favorable outcome are welldocumented in the record.

See App. 85-89

(discussing Petitioners’ economic injuries); see also

Dist. Ct. Doc. 256, at 33-38 (citing the testimony from

multiple experts, EPA’s own witnesses, and the

depositions of Petitioners’ executives supporting the

redressability of Petitioners’ economic injuries).

Redressability is satisfied when, as here, the plaintiff

“shows that a favorable decision will relieve a

discrete injury to himself.” Larson v. Valente, 456

U.S. 228, 243, n.15 (1982).

EPA also claims (again, as it unsuccessfully did in

its second motion to dismiss) that Petitioners have no

informational standing because “Section 7621(a) does

not grant every member of the public a legal right to

information in EPA’s evaluations.” Response at 22.

This is false. As the district court properly found,

“EPA fails to point out any theory by which this

information could be secreted from the plaintiffs or

any other person.” App. 143. Furthermore, the

legislative history of § 321(a) supports this

conclusion. See App. 95, citing H.R. Rep. 95-294, 316,

318, 1977 U.S.C.C.A.N. 1395, 1397. (“findings of fact

and recommendations are to be made available to the

public.”).

Finally, as the district court properly found, even

if Petitioners did not have access to the information

created by § 321(a), Petitioners still have the

procedural right to have EPA evaluate the job losses

12

it is causing when it sets policies and makes other

decisions that affect Petitioners. As the district court

properly found, “[t]he procedure mandated by

[§ 321(a)] 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 . . . is

sufficient to support procedural standing.” App. 142.

Contrary to EPA’s claims, this case is a sound

vehicle for certiorari review. The material facts are

not in dispute.

The legal issues have been

crystalized through three years of litigation and are

squarely presented, both on the jurisdiction of the

courts and on the enforceability of § 321(a).

Petitioners have litigated this case for years to obtain

from EPA the job loss evaluations it is required to

produce, and they are the proper petitioners to bring

these issues to the Court.

CONCLUSION

For the foregoing reasons, and those in the

Petition for Writ of Certiorari, Petitioners

respectfully request that their Petition for Writ of

Certiorari be granted.

13

Respectfully submitted,

John D. Lazzaretti

Counsel of Record

SQUIRE PATTON BOGGS (US) LLP

4900 Key Tower

127 Public Square

Cleveland, OH 44114

(216) 479-8350

john.lazzaretti@squirepb.com

Counsel for Petitioners