EPA chief must give deposition in coal lawsuit, court rules

The Environmental Protection Agency (EPA) has lost in its bid to block administrator Gina McCarthy from being deposed in a federal lawsuit about coal industry regulations.

In a Thursday filing, John Preston Bailey, a judge in the District Court for the Northern District of West Virginia, found that McCarthy’s close involvement in the analyses at issue mean that she is relevant enough to require a deposition.

At issue in the case are estimates of job losses from EPA regulations that Murray Energy Corp. says are mandated for every Clean Air Act regulation that affects the coal industry.

The EPA has argued in court that its work in writing regulations sufficiently complies with the law, but Murray said the agency has never complied.

“By statute, the administrator is responsible for conducting the evaluations in question,” Bailey wrote in his order, adding that “she has personally been involved with discussions about Section 321(a).”

The court also found that McCarthy has repeatedly communicated with lawmakers about the provision in the law and said that the EPA has never completed such an evaluation, because it is not required to.

But in court, the EPA changed its argument, saying that it analysis of regulations fulfills that responsibility, Bailey said.

“The plaintiffs are entitled to explore these divergent positions,” he wrote.

The EPA has worked repeatedly in recent months to resist the efforts to depose McCarthy, arguing that the request is “extraordinary,” and saying Murray did not prove why it is necessary.

Obama administration lawyers asked an appeals court Tuesday to block the deposition, saying the district court was taking too long in considering its request.

EPA spokeswoman Melissa Harrison said it is reviewing the Thursday order, but it disagrees with it.

“Murray Energy has not shown that she has unique knowledge essential to their case or that the information they seek is unavailable from other sources,” she said. “Under well-settled case law, the deposition of high-ranking executive officials is barred absent extraordinary circumstances.”

That appeal is now moot, although the EPA has until Dec. 4 to file a new appeal.