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Update on SDNY Legal Battles Spawned by EPA’s Temporary Enforcement Policy

Posted: 08/20/2020
Services: Environmental

The U.S. Environmental Protection Agency (EPA)’s embattled temporary Policy issued on March 26, 2020, which modified the agency’s enforcement discretion in light of the COVID-19 crisis, continues to spawn litigation despite EPA’s announced intention to terminate the Policy on August 31, 2020.

Most recently, on August 18, 2020, the Center for Biological Diversity, Waterkeeper Alliance, Inc. and Riverkeeper, Inc. filed suit against EPA, arguing that EPA violated the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA) by issuing its Policy without first engaging in a formal consulting process with federal wildlife agencies. Consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service is mandated by the ESA prior to “any action [that] may affect listed species or critical habitat,” to ensure that such action is not likely to jeopardize the continued existence of any endangered or threatened species or destroy their habitat. The conservation groups assert that EPA’s broad suspension of routine compliance monitoring and reporting obligations under EPA permits and programs pursuant to its “non-enforcement” Policy was such an action, which has created an “immediate and serious risk to imperiled wildlife.”

Still pending before the same court is a suit filed in May 2020 by a coalition of nine states’ attorneys general in New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia and Vermont, claiming that EPA’s Policy exploits the COVID-19 pandemic by relaxing compliance obligations and tolerating industrial pollution at a time when citizens with existing respiratory and cardiovascular issues are at heightened risk. The states alleged that it was “arbitrary and capricious for EPA to adopt a broad ranging policy without considering whether it will exacerbate harms to public health during the current crisis,” and proclaimed that EPA’s “non-enforcement policy” represents “an abdication of EPA’s responsibilities promulgated without notice or comment.” In early July 2020, the states announced their intention to voluntarily dismiss their suit upon termination of EPA’s Policy on August 31, 2020, but an expedited preliminary injunction briefing schedule was established in the case in the event that the Policy does not terminate on that date.

Finally, an initial suit challenging EPA’s Policy, filed in April 2020 by a coalition of 14 environmental justice, public health and public interest organizations led by the Natural Resources Defense Council, concluded on July 8, 2020 with a summary judgment ruling in favor of EPA. These groups had claimed that the lives of citizens who live in “downstream, downwind and fenceline communities” near industrial facilities were being put in danger by EPA’s Policy, both as a result of increased pollution levels and due to the reduced amount of emissions information available to the public. The court sided with EPA, however, determining that the groups failed to establish in any concrete way that their members were being subjected to worsening pollution, or were being deprived of any information to which they were entitled, as a result of EPA’s Policy. In so deciding, the court observed that EPA’s Policy did not give regulated entities a “free pass,” and still required them to disclose noncompliance under a variety of circumstances notwithstanding the existence of an “unprecedented national emergency.”

With the recent resurgence of COVID-19 cases in many states, it remains to be seen whether EPA’s controversial Policy will in fact terminate on August 31, 2020 -- in conformity with EPA’s late June Policy addendum -- or whether EPA may elect to extend the Policy while the pandemic endures, which would inevitably inflame EPA’s existing legal battles and ignite new ones.

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