Congress in 1977 mandated in every major environmental statute that EPA “continuously evaluate potential loss or shifts in employment” from its regulations in order to gauge the real regulatory impact on individuals and communities. Since 1977, EPA has not complied. The agency has been ignoring the faces of real people who lose real jobs because of a regulation.  

EPA has been implementing rules as a result of Congressional action, but Congress also intended for EPA to evaluate the impact on real Americans who lose real jobs. Fortunately, this lack of compliance is now being challenged in federal district court.  

A lawsuit brought against EPA by Murray Energy Company argues that section 321(a) of the “Clean Air Act” imposes a mandatory duty on EPA to conduct the continuous evaluation of potential job loss and shifts in employment from the agency’s air quality rules, but the agency failed to act. EPA tried to dismiss the case, arguing that Murray has no standing to bring a lawsuit because it is not harmed by EPA’s failure to conduct the study. 

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But on March 27, the federal district court found that Murray’s claimed injuries are sufficient to give the company legal standing:

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. 

The legislative history shows clearly that Congress wanted to get the hard facts about the impact of EPA regulations on jobs. The 95th Congress was unmistakably clear that it wanted to determine the truth of the allegations that environmental regulations were responsible for plant shutdowns, decisions not to build new plants and resulting job loss.  

Decades later, in Whitman v. American Trucking Association, Justice Scalia writing for a near-unanimous Court observed:

In particular, the economic cost of implementing a very stringent standard might produce health losses sufficient to offset the health gains achieved in cleaning the air – for example, by closing down whole industries and thereby impoverishing the workers and consumers dependent upon those industries.  That is unquestionably true, and Congress was unquestionably aware of it.

Why is EPA so fearful of undertaking this mandate? Perhaps it is time for Congress to demand EPA look at the impacts of its regulations on real people, in real communities. And if EPA continues to deny Congress this information, then maybe it is time for Congress to make EPA’s funding contingent on the performance of a mandate imposed on the agency by a federal court.

Kovacs is senior vice president of Environment, Technology, & Regulatory Affairs at the U.S. Chamber of Commerce.