Environmental Organizations Lack Standing in Litigation Over EPA’s COVID-19 Enforcement Policy; Litigation by State Attorneys General Continues
We have previously written about the EPA’s COVID-19 Enforcement Policy, which is scheduled to be terminated on August 31, 2020. The EPA’s March 26, 2020, policy set forth the way the EPA would apply its enforcement discretion for noncompliance with environmental monitoring, testing and reporting requirements as a result of the pandemic.
As with all good EPA policies, litigation ensued. In NRDC v. EPA, No. 20-CV-3058 (S.D.N.Y.), on July 8, 2020, 15 environmental organizations were found to lack standing in a case in which they sued the EPA for not acting on a petition they filed that sought an emergency rule that would have required regulated entities to notify the EPA whenever they were unable to comply with environmental compliance obligations as a result of the pandemic (see Memorandum Decision and Order, dated July 8, 2020). Note that this case was about a requested adaptation of the policy. It was not about the merits of the policy itself.
The litigation over the EPA’s authority to adopt its COVID-19 Enforcement Policy in the first place is New York v. EPA, No. 20-CV-3714 (S.D.N.Y). That case is pending. Or as the litigation’s status was described in the NRDC case, “the real litigation – over the legality of the Policy itself – is presently being briefed in an action brought by nine State Attorneys General.”
While the briefs from these two cases provide an interesting trip through the world of environmental law, we expect that the practical impact from this litigation will likely be quite limited. The EPA, on its own volition, is in the process of dialing back the relaxation of enforcement announced in its original policy.
Regardless of the EPA’s policy, the conduct of regulated entities during the pandemic will be under scrutiny, not just by the EPA, but also by states, local governments, and citizens. We continue to advise regulated entities that fail to achieve compliance as a result of the pandemic of the importance of making a good record. Regulated entities will need to be prepared to explain why the COVID-19 pandemic made it impossible to or frustrated their efforts to comply with any laws, regulations and requirements. We encourage working with counsel on preparing appropriate documentation of all relevant facts and circumstances.
Our Environmental Practice Group is continuing to monitor these developments and is available to answer your questions related to matters affected by COVID-19. Contact Matthew Cohn and Bill Anaya in Chicago or Richard Greenberg and Greg Mollett in St. Louis.