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Lawsuits Challenging EPA’s Temporary Enforcement Discretion Policy for COVID‑19 Pandemic Hit Dead End

Song

By Leah M. Song

Covid-19As an update to our July 1st blog regarding EPA’s notice that its COVID-19 Temporary Enforcement Policy will end on August 31, 2020, there have been some new developments in the lawsuits filed challenging that policy.

On July 8, 2020, Judge McMahon of the United States District Court for the Southern District of New York ruled that the Natural Resources Defense Counsel and other environmental organizations (“Plaintiffs”) failed to show that they were injured by EPA’s purported “unreasonable delay” in responding to the petition. The Plaintiffs had petitioned EPA to publish an emergency rule requiring an entity to provide written notice if they were suspending monitoring and reporting because of COVID-19.

The court held that the Plaintiffs failed to establish the standing requirements. The Plaintiffs did not establish that they were “legally entitled to the information they seek” and lacked association standing as well. The Plaintiffs did not demonstrate that they “suffered a sufficiently concrete injury nor that that alleged injury is fairly traceable to EPA’s purported delay in responding to the Petition.”

The court said it was “perfectly obvious that, at the time Plaintiffs brought this lawsuit, the EPA had not ‘unreasonably’ delayed its response to the Petition.” Judge McMahon said that “the real litigation – over the legality of the [Enforcement Policy] itself – is presently being briefed in an action brought by nine State Attorneys General. That is where the action will – and should – take place.” Accordingly, the court granted summary judgment in favor of the EPA.

One day later on July 9, the State Attorneys General indicated that they will drop their lawsuit against EPA given the upcoming Enforcement Policy deadline. “EPA does not intend to extend the [Enforcement] Policy beyond August 31 and, should the policy terminate on (or before) August 31, Plaintiffs currently intend to voluntarily dismiss the Complaint without prejudice.” The parties prepared a “contingent, expedited briefing schedule” should EPA not terminate the Enforcement Policy by that date. This announcement this lawsuit will be is unlikely to cause Judge McMahon to revisit the summary judgment ruling since this decision doesn’t change that Plaintiffs lacked standing to bring the claims.

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.