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Murray Energy Corp. v. McCarthy

ELR Citation: 44 ELR 20211
Nos. 5:14-CV-39, (N.D. W. Va., 09/16/2014) (Bailey, J.)

A district court held that it has subject matter jurisdiction over a CAA §321(a) lawsuit against EPA for its alleged failure to evaluate the potential for job losses due to its CAA regulation and enforcement efforts. EPA filed a motion to dismiss, arguing that the statute is discretionary and that CAA §321(a) does not contain a date certain for action by the Administrator. But CAA §321(a) provides that the Administrator "shall conduct continuing evaluations" of potential job losses that may result from EPA's administration and enforcement of the Act. The use of the term "shall" creates a mandatory obligation on EPA to perform the specified action. In addition, the lack of a "date-certain deadline" does not make EPA immune from judicial review. Although EPA may have discretion as to the timing of such evaluations, it does not have the discretion to categorically refuse to conduct any such evaluations, which is the allegation of the plaintiffs.