INADMISSIBLE: EPA's McCarthy Protected From Deposition

By The National Law Journal.

U.S. Environmental Protection Agency Administrator Gina McCarthy won't be forced to testify in a Clean Air Act lawsuit, a federal appeals court ruled last week. Murray Energy Corp., represented by Squire Patton Boggs and Dinsmore & Shohl, wanted McCarthy to answer questions in a case against the EPA over its enforcement of the Clean Air Act. The agency, according to the energy company, failed to evaluate the effect that enforcement of the law had on the coal industry and jobs as required. After U.S. District Judge John Bailey in West Virginia in November rejected the agency's effort to block Murray from questioning McCarthy at a deposition, the government took the fight to the U.S. Court of Appeals for the Fourth Circuit.

Bailey had found that McCarthy's testimony was necessary because the agency previously made statements to Congress about its accounting of job losses in Clean Air Act enforcement that appeared to conflict with the agency's arguments in the Murray case. The Fourth Circuit panel found no such conflict. Bailey interpreted the EPA's statements to Congress to mean that the agency hadn't evaluated job losses under a section of the Clean Air Act. The EPA submitted documents in the litigation that it said showed that the agency had done job-loss evaluations.

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