Environmental Groups Allege EPA Failed to Engage in Endangered Species Act Consultation Before Implementing COVID-19 Enforcement Discretion Policy
On August 18, 2020, the Center for Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. (“Conservation Groups”) filed a new lawsuit in the U.S. District Court for the Southern District of New York against the U.S. Environmental Protection Agency and Administrator Wheeler (“EPA”) for failing to comply with their mandatory duties under the Endangered Species Act (“ESA”) in connection with promulgation of EPA’s COVID-19 enforcement discretion policy. More specifically, the Conservation Groups argued that the EPA failed to “initiate and complete ESA Section 7 consultation to ensure that EPA’s actions in response to the COVID-19 pandemic,” as described in the March 26, 2020 “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (“Temporary Enforcement Policy”), would not jeopardize any listed species or their habitats. An analysis of the Temporary Enforcement Policy can be found at Jenner & Block’s Corporate Environmental Lawyer blog here.
Other environmental groups had previously challenged EPA’s Temporary Enforcement Policy, claiming that EPA was unreasonably delaying its response to a petition filed by the groups requesting that EPA issue an emergency rule requiring written notice from regulated entities that elect to suspend required environmental reporting and/or monitoring due to the COVID-19 pandemic. 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 failed to show that they were injured by EPA’s purported “unreasonable delay” and therefore granted summary judgment in favor of EPA.
In this latest lawsuit, the Conservation Groups claim that EPA failed to engage in a required ESA Section 7 consultation prior to promulgating its Temporary Enforcement Policy. Notwithstanding that EPA’s Temporary Enforcement Policy explicitly states that regulated entities should “make every effort to comply with their environmental compliance obligations” and merely provides guidance on how EPA’s plans to exercise its long-held enforcement discretion in light of the challenges posed by the COVID-19 pandemic, the Conservation Groups’ complaint explains how the regulatory programs affected by the Temporary Enforcement Policy implicate the interests of listed species and their habitat as those programs are “intended to limit pollution and prevent adverse environmental harm.” For example, the complaint asserts that suspension of Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”) effluent sampling program “potentially affects listed species and critical habitats by allowing unmonitored and unreported (and hence unrestricted) contamination of waterways such species depend on.”
The Section 7 consultation process is meant to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2). The Section 7 consultation process must be initiated at “the earliest possible time” for any project that “may affect” listed species. 50 C.F.R. § 402.14(a). The Conservation Groups allege that the Temporary Enforcement Policy “clearly meets the ESA’s ‘may affect’ threshold for triggering the agency’s Section 7 consultation obligations.” While the Conservation Groups recognized the unique challenges posed by COVID-19, they stated “this does not mean that EPA may simply ignore its vitally important, and legally required, ESA Section 7 duties and disregard potential impacts on imperiled species and their critical habitats.” They argue there is no evidence that the EPA undertook Section 7 consultation with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, or even followed the emergency consultation process provided for in the ESA.
EPA announced that it will terminate its reliance on the Temporary Enforcement Policy on August 31, 2020 (although EPA stated that the termination in no way limits its ability to exercise enforcement discretion on a case-by-case basis). EPA’s termination announcement was previously discussed on Jenner & Block’s Corporate Environmental Lawyer blog here. In light of EPA’s announcement, several State Attorneys Generals that had also filed a complaint challenged EPA’s Temporary Enforcement Policy indicated that they intend to dismiss their lawsuit so long as EPA terminates its reliance on the policy on or before August 31st. In an attempt to preempt what is likely to be a motion to dismiss on mootness grounds, the Conservation Groups allege that “there is no assurance that the policy will be rescinded by that date, particularly given the recent surge in COVID-19 cases,” and that their case should therefore be allowed to proceed.
Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
Back on April 23, 2020, Illinois State Representative (R) Darren Bailey filed a complaint in the Clay County Circuit Court with two counts for declaratory judgment and a request for injunction, alleging that Governor Pritzker’s extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Management Agency Act (“IEMAA”). Specifically, the lawsuit alleged that the IEMAA grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the IEMAA limits these authorities to “a period not to exceed 30 days” following the declaration. Thus, Rep. Bailey alleged that any extension of the stay-at-home order 30 days after the original Executive Order was void. On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a temporary restraining order (“TRO”) to enjoin Governor Pritzker from enforcing the stay-at-home order against him or entering any further executive orders that would limit Rep. Bailey’s ability to travel within the state.
On April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Governor Pritzker’s stay-at-home order by granting Rep. Bailey the TRO, solely as to him. In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” On that same day, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. On April 30, 2020, Rep. Bailey filed in the Fifth District Appellate Court a consent to entry of order vacating the TRO and remanding the case back to the circuit court, which the court agreed to do on May 1, 2020.
On remand, Rep. Bailey filed an amended complaint on May 13, 2020, consisting of four counts seeking the follow relief:
- “Declaratory judgment finding that the April 30 Proclamation is void for failing to meet the definition of a disaster as defined in the IEMAA;”
- “Declaratory judgment finding that Pritzker had no authority to utilize emergency powers after April 08, 2020;”
- “Declaratory judgment finding that the Illinois Department of Public Health Act governs the conduct of the state actors in this context;” and
- “[I]njunctive relief.”
Shortly after, on May 18, 2020, Rep. Bailey filed a motion for summary judgment. Before the hearing on the summary judgment motion, the Governor removed the case to federal court, but it was ultimately remanded. The U.S. Department of Justice got involved in this legal battle, filing a brief in federal court arguing that this case belonged in state court.
Following the remand from federal court, Rep. Bailey filed a notice of hearing on his summary judgment motion. On July 2, 2020, Judge McHaney ruled in favor of Rep. Bailey and held that Governor Pritzker’s COVID-19 Executive Orders were void and granted summary judgment on two counts (“July 2 Order”). The court concluded that the “30-days of emergency powers provided in Section 7 of IEMAA … lapsed on April 08, 2020,” such that all COVID-19 Executive Orders after April 8, 2020 are “void ab initio.” Further, the Governor had no authority “to restrict a citizen’s movement or activities and/or forcibly close business premises.” The court also granted Rep. Bailey’s “oral request that his Amended Complaint be a representative action” such that this ruling shall “apply to all citizens of the State of Illinois.”
The court must rule on the remaining issue of whether COVID-19 “meets the definition of a disaster as defined in the IEMAA.” Until then, the July 2 Order is neither enforceable nor appealable. The Illinois Attorney General moved to dismiss the remaining count and a hearing was set for July 17, but it was vacated by agreement. On July 22, Rep. Bailey filed a motion for leave to amend and add an additional count, seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist in Clay County on June 26, 2020, when Governor Pritzker issued a proclamation that a “public health emergency” existed within all Illinois counties as a result of COVID-19.
Most recently, on August 5, 2020, Rep. Bailey filed a Petition for Adjudication for Indirect Civil Contempt, seeking to hold Governor Pritzker in civil contempt of court for disregarding the July 2 Order and continuing to issue COVID-19 Executive Orders. Judge McHaney ordered Governor Pritzker to appear in the Clay County Courthouse on August 14, 2020 to “show cause why he should not be held in indirect civil contempt and sanctioned for his willful disregard with the previously entered order of the Court.” The order stated that failure to appear may result in a warrant for the Governor’s arrest. But on August 11, 2020, the Illinois Supreme Court issued an order to stay the contempt hearing set for this Friday.
On July 23 and 24, 2020, Rep. Bailey’s attorney filed similar cases in various counties across the state, including Bond, Clinton, Edgar, Richland, and Sangamon counties, all seeking a declaratory judgment that a “public health emergency” as defined by the IEMAA did not exist as of June 26, 2020 and to void the Governor’s Executive Orders. . See Craig v. Pritzker, No. 2020-MR-589 (Sangamon Cty. Cir. Ct., Ill.); Allen v. Pritzker, No. 2020-MR-45 (Edgar Cty. Cir. Ct., Ill.); DeVore v. Pritzker, No. 2020- MR-32 (Bond Cty. Cir. Ct., Ill.); Gorazd v. Pritzker, No. 2020-MR-79 (Clinton Cty. Cir. Ct., Ill.); English v. Pritzker, No. 2020-MR-48 (Richland Cty. Cir. Ct., Ill.).
On August 11, 2020, in response to a motion for a supervisory order filed by the Illinois Attorney General on behalf of the Governor, the Illinois Supreme Court consolidated, in the Sangamon County Circuit Court before Judge Grischow, all of the cases filed in various counties, including Rep. Bailey’s lawsuit. Sangamon County includes the city of Springfield, the Capitol of Illinois.
An analysis of the Governor’s successes upholding his Executive Orders in federal court can be found here. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
Several state and federal court lawsuits have been brought challenging Illinois Governor Pritzker’s proclamations and executive orders related to COVID‑19 (“Executive Orders”). In federal court, in contrast with state court, the Governor has been successful defending his Executive Orders. Most recently, on July 29, 2020, in a written opinion issued on August 1, 2020, the Village of Orland Park, and certain of its residents lost their motion to obtain immediate invalidation of the Executive Orders, when Judge Andrea Wood, of the United States District Court for the Northern District of Illinois (“the Northern District”), found that their claims had less than a “negligible likelihood” of succeeding. Village of Orland Park v. Pritzker, No. 20-cv-03528.
As background to the Village’s lawsuit, in response to the COVID‑19 pandemic, Governor Pritzker issued Executive Orders on March 9, March 20, April 1, April 30, May 29, and June 26, 2020 declaring a statewide public health disaster and restricting business operations, gatherings above a certain size, and other measures consistent with both stay-at-home and reopening orders. On June 16, 2020 the Village of Orland Park, the owner of a restaurant in the Village, and two Village residents (“Plaintiffs”) sued Governor Pritzker seeking to have the federal court issue a temporary restraining order and preliminary injunction prohibiting enforcement of the Executive Orders.
Plaintiffs’ complaint alleged that the Executive Orders violate their due process rights, the equal protection clause of the Fourteenth Amendment, and their procedural and substantive rights under the Illinois constitution and the Illinois Department of Public Health Act. The Village claimed that the Executive Orders illegally attempt to prevent the home-rule municipality from implementing its own order, allowing a faster reopening. The restaurant owner claimed that the Executive Orders caused economic losses. The individual plaintiffs claimed that the Executive Orders caused personal isolation and restricted medically necessary exercise.
Based on Plaintiffs’ verified complaint, the facts of which were uncontested by the Governor at that early stage of proceedings, the court heard oral argument on June 30, 2020. The court ruled that Plaintiffs did not meet the standards for injunctive relief, which require them to show a “greater than negligible likelihood of success on the merits,” and that the balance of harms Plaintiffs may suffer as a result of their claimed injury are greatly outweighed by burdens on the Governor and the public interest. The court began its analysis of the merits of Plaintiffs’ claims by finding that “the COVID‑19 pandemic constitutes the very sort of extraordinary threat to public health and safety contemplated by the Supreme Court in Jacobson [v. Massachusetts, 197 U.S. 11 (1905)].” Slip op. at 13. Pursuant to the standards in Jacobson, because Plaintiffs could not show that “the Executive Orders have a real or substantial relationship to preventing the spread of COVID‑19 or beyond all question plainly and palpably invade Plaintiffs’ constitutional rights,” Plaintiffs’ federal claims did not have more than a negligible chance of success. Id.
Moreover, even without relying on deference to state authority during a public health emergency recognized in Jacobson, Judge Wood also was unpersuaded by the merits of any of Plaintiffs’ federal claims when analyzed based on “traditional constitutional analyses.” Slip op. at 14. With respect to Plaintiffs’ procedural and substantive due process claims, while the complaint was unclear as to the liberty or property interests at stake, the court considered that Plaintiffs “may be asserting rights to work, rights to travel, or rights to freedom of association.” Slip op. at 15. However, the court found that Plaintiffs failed to show that they were deprived of those interests without due process of law. For example, the court reasoned that “there is no constitutional procedural due process right to state-mandated procedures.” Id. Even if Plaintiffs “are ultimately correct that the Governor should have complied with the procedures…in implementing his response to COVID‑19, they still will not have established a federal constitutional violation.” Id. The court also found that Plaintiffs could not establish that their rights were, in fact, violated. The court dispensed with Plaintiffs’ equal protection claim by noting the “many rational bases for the distinctions drawn among different types of business in the Executive Orders.” Slip op. at 23. The court also found that the Governor’s defense under the doctrine of sovereign immunity under the Eleventh Amendment to the U.S. Constitution barred all of the state law claims in federal court. Slip op. at 27.
After finding that Plaintiffs had less than a negligible chance of prevailing on the merits of their claims, the court considered the balance of harms to “further demonstrate[ ] that a preliminary injunction would be inappropriate.” Id. “Granting a preliminary injunction to Plaintiffs would do extraordinary damage to the state’s interest (and the public interest) in preventing the spread of COVID‑19…. On the other side of the balance, Plaintiffs have made no showing that they are experiencing substantial harm as a result of the Executive Orders at this time or that they are likely to experience substantial harm in the near future.” Slip op. at 28. Therefore, the court denied Plaintiffs’ motion for injunctive relief.
On July 27, 2020, the Governor moved to dismiss the entire case for failure to state a claim and lack of jurisdiction. Judge Wood arranged a briefing schedule on the Governor’s motion, and set September 29, 2020, for the next telephonic hearing in the case.
The ruling in Village of Orland Park follows three other successes for the Governor thus far in federal court. Judge John Lee heard the first Northern District case opposing the Governor’s Executive Orders in a case filed by The Beloved Church and its pastor against the Governor and the Stephenson County Sheriff and other officials on April 30, 2020. Cassell v. Snyders, No. 20-cv-50153. The church claimed that the Governor’s April 30, 2020 Executive Order violated the First Amendment’s Free Exercise Clause and three state statutes. On May 2, 2020, the court denied the church's request for injunctive relief. In a written decision issued on May 3, 2020, after finding, based on Jacobson, that the “traditional tiers of constitutional scrutiny do not apply” during an epidemic (slip op. at 14), the court ruled that the Order was a “neutral, generally applicable law” that is supported by a rational basis (slip op. at 26). The court then invoked the Governor’s Eleventh Amendment sovereign immunity with respect to the state law claims, and found the state law claims also unlikely to succeed on the merits. After this denial of injunctive relief in the district court, the church’s interlocutory appeal remains pending in the U.S. Court of Appeals for the Seventh Circuit as of this writing.
In a second federal case brought by a religious institution, in Elim Romanian Pentecostal Church v. Pritzker, No. 20‑cv‑02782, two churches contested the Governor’s Executive Order, which limited gatherings of more than ten people and imposed social distancing requirements, including on churches. They filed their complaint and a motion for emergency injunctive relief on May 7 and 8, 2020, respectively. The complaint challenged the Governor’s Order on federal and state constitutional grounds and state statutory grounds, but their motion for injunctive relief rested only on U.S. First Amendment rights. On May 13, 2020, Judge Robert Gettleman found that the Governor’s Order was both neutral and of general applicability; therefore, because it was supported by a rational basis, it was not unconstitutional. The court further found that “Plaintiffs’ request for an injunction, and their blatant refusal to follow the mandates of the Order are both ill-founded and selfish.” Slip op. at 11. When the district court denied injunctive relief, the churches appealed to the Seventh Circuit. Their requests for injunctive relief were denied on appeal. In its June 16, 2020 decision, the Seventh Circuit, in part relying on Chief Justice Roberts’ concurring opinion to the denial of injunctive relief in a case brought by churches in the Ninth Circuit, ruled that “Illinois has not discriminated against religion and so has not violated the First Amendment.” Slip op. at 12. The Seventh Circuit then denied the churches’ request for rehearing en banc on July 27, 2020.
On June 15, 2020, several Illinois Republican Party organizations filed a complaint and motion for a TRO and preliminary injunction in the Northern District, alleging that because Governor Pritzker’s Executive Order prohibited gatherings greater than fifty people but exempted the free exercise of religion from this limit, the organizations’ rights under the First and Fourteenth Amendments were violated. Illinois Republican Party v. Pritzker, No. 20-cv-03489. Specifically, the Republican organizations alleged that, by exempting the free exercise of religion from the gathering limit, Governor Pritzker created an unconstitutional content-based restriction on speech. On July 2, 2020. Judge Sara Ellis, denied plaintiffs' motion for preliminary injunctive relief, ruling that their likelihood of success on the merits of their constitutional claims was less than negligible and the balance of harms weighed heavily against them. The court based its ruling on both Jacobson and a “traditional First Amendment analysis.” Slip op. at 9. The court found that “by exempting free exercise of religion from the gathering limit [in the Executive Order], the Order creates a content-based restriction.” Id. at 15. The court held, however, that the Executive Order survives “strict scrutiny” because the content-based restriction may “eliminate[ ] the increased risk of transmission of COVID‑19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at the stage in demonstrating that the Order is narrowly tailored to further a compelling interest….” Id. at 18. The political organizations filed for emergency relief on appeal. The U.S. Court of Appeals for the Seventh Circuit ruled that the Governor’s compelling interest in controlling the spread of COVID‑19 passed strict scrutiny, and denied their motion for emergency relief on July 3, 2020, and the U.S. Supreme Court denied plaintiffs’ emergency application for write of injunctive relief on July 4, 2020. Further proceedings on appeal to the Seventh Circuit are pending as of this writing.
Although the Governor scored successes in the federal lawsuits brought against his COVID‑19 actions, he has not fared as well thus far in state court. The state court litigation against the Governor’s Executive Orders will be addressed in a separate blog, to be published shortly.
For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
On July 27, 2020, Virginia became the first state to adopt an emergency workplace safety standard regarding exposure to COVID-19. Virginia is one of the 22 states which has jurisdiction to issue its own workplace safety and health regulations, which must be at least as stringent as regulations issued by U.S. OSHA, but can go beyond federal requirements. The Virginia regulation titled §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‑19 (“Emergency Standard”) was adopted during a meeting of the Virginia Safety and Health Codes Board on July 15, 2020. The Emergency Standard will expire “(i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or (ii) when repealed by the Virginia Safety and Health Codes Board.” The Emergency Standard was available as of July 24, 2020, but will be formally published on July 27, 2020, and its legal effective date is July 27, 2020.
The Emergency Standard shall apply to every employer, employee, and place of employment in Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program (“VOSH”), as described in §§ 16 VAC 25-60-20 and 16 VAC 25-60-30 for both public and private employers.
The “[a]pplication of this [Emergency Standard] to a place of employment will be based on the exposure risk level” (i.e., “very high,” “high,” “medium,” and “lower” of COVID-19 and “related hazards present or job tasks.” The Emergency Standard includes a minimum list of factors to be considered in determining exposure risk level, such as the work environment and employee contact, as well as employer requirements for each exposure risk level.
The Emergency Standard details mandatory requirements for all employers, regardless of exposure risk level, such as:
- Exposure assessment and determination, notification requirements, and employee access to exposure and medical records
- Return to work policies and procedures
- Physical distancing
- Limited access to common areas
- Compliance with respiratory protection and personal protective equipment standards
- Compliance with sanitation and disinfection standards
The Emergency Standard details additional requirements for each exposure risk level designated as “very high,” “high,” and “medium.” For all workplaces other than those with low exposure risk, the employer must develop and implement a written Infectious Disease Preparedness and Response Plan (“IDPR Plan”). The IDPR Plan, employers shall consider contingency plans for outbreaks, identify basic infection prevention measures, and address interaction with outside businesses.
In addition, the Emergency Standard requires that in workplaces in the “very high” and “high” exposure risk levels, the employer shall implement protective measures such as isolation facilities and physical barriers. For the “medium” exposure risk level, the employer shall consider protective measures such as flexible work arrangements and increasing physical distancing.
With regard to face coverings, the Emergency Standard defines “face covering” as not PPE. The Emergency Standard states: “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” §16 VAC 25‐220-30. At the “medium” exposure level, employers of "medium" exposure level workplaces are required, “to the extent possible,” to provide and have their employees wear face coverings where it is not feasible to physically distance between employees or in customer-facing jobs for the “medium” exposure level. Face coverings may not be required under certain circumstances, such due to the wearer’s medical condition and religious waivers.
To the extent that an employer actually complies with a recommendation contained in CDC guidelines, and those guidelines provide “equivalent or greater protection than provided by a provision of this [Emergency Standard], the employer’s actions shall be considered in compliance with this [Emergency Standard].” “An employer’s actual compliance with a recommendation contained in CDC guidelines … shall be considered evidence of good faith in any enforcement proceeding related to this [Emergency Standard].”
The Emergency Standard also expressly addressed the notification requirements when there is an employee with a positive COVID-19 case. Employers must notify (a) the building or facility owner if any employee in the building tests positive for COVID-19; (b) the Virginia Department of Health within 24 hours of the discovery of a positive case; and (c) the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees who test positive for COVID-19 within a 14-day period.
Additionally, employers are prohibited from using antibody testing to “make decisions about returning employees to work who were previously classified as known or suspected to be infected” with COVID-19.
The Emergency Standard also confirms an employee’s right to “refus[e] to do work or enter a location that the employee feels is unsafe.” Section 16 VAC 25-60-110 provides requirements regarding the “discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.” That provision states that such discharge or discipline will be considered retaliatory “only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection.”
Under Emergency Standard §16 VAC 25‐220‐80, covered employers will have until August 26, 2020, to train employees, covering topics such as the requirements of the Emergency Standard, COVID-19 symptoms and methods of transmission, safe and healthy work practices, and anti-discrimination provisions. It is important to note that training requirements for exposure risk levels “very high,” “high,” and “medium” differ from the less-comprehensive requirements for the “lower” risk level. Under subsection 16 VAC 25‐220‐70, if an employer is required to have an IDPR Plan, the employer must develop and train employees on their IDPR Plan by September 25, 2020.
Training and outreach materials, including training PowerPoints, FAQs, an IDPR Plan template, and an exposure risk level flow chart, are being developed by the VOSH Cooperative Programs Division, with some available here, as of July 24, 2020.
At the federal level, OSHA has come under scrutiny for its decision not to adopt a COVID-19 emergency temporary standard. The American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) and other unions asked OSHA to issue an Emergency Temporary Standard (“ETS”), rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance to no avail. On May 18, 2020, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. However, on June 11, 2020, the court held that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environment.” On June 18, 2020, the AFL-CIO filed for a rehearing en banc. Please see Jenner & Block’s analysis of the AFL-CIO lawsuit here. In addition, the U.S. House of Representatives introduced legislation, titled “The COVID-19 Every Worker Protection Act” (H.R. 6559), which would require OSHA to issue an ETS. The provisions of H.R. 6559, including the provisions relating to the ETS, were included in H.R. 6800, The Heroes Act. H.R, passed by the House on May 15, 2020, and which is set to be part of the upcoming political debates and votes by the House and the Senate on new COVID-19 economic stimulus and related legislation.
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.
Lawsuits Challenging EPA’s Temporary Enforcement Discretion Policy for COVID‑19 Pandemic Hit Dead End
By Leah M. Song
As 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 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.
By Leah M. Song
On June 29, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a termination addendum to the COVID‑19 temporary enforcement policy previously issued on March 26, 2020. As further discussed below, EPA’s temporary enforcement policy will now terminate no later than August 31, 2020.
The temporary enforcement policy discussed EPA enforcement of environmental legal obligations during the COVID‑19 pandemic. The temporary policy made clear that the EPA expected regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also required facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID‑19 pandemic. The temporary enforcement policy was analyzed in Jenner & Block’s Corporate Environmental Lawyer blog here.
In the recent termination addendum, EPA pointed to various federal and state guidelines developed in response to the pandemic, but noted that as restrictions begin to be relaxed or lifted, so too are compliance obstacles. However, EPA also noted that in some states, the resurgence of COVID‑19 cases could result in a pause in reopening and EPA acknowledged that “there will be a period of adjustment as regulated entities plan how to effectively comply both with environmental legal obligations and with public health guidance.”
EPA therefore selected August 31, 2020, as the termination date for the temporary enforcement policy. EPA stated that the termination date reflects “the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency,” but “ensures that there is adequate time to adjust to the changing circumstances.”
EPA reminded entities that “[a]s stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID‑19” which “should become fewer and fewer.” EPA made clear that it “will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” However, EPA will still consider exercising its enforcement discretion on a “case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID‑19 public health emergency, before or after the temporary policy is terminated.”
Finally, EPA floated the possibility that the temporary enforcement policy could terminate even before August 31, 2020. EPA will continue to assess national and state conditions, such as “the expiration or lifting of ‘stay at home’ orders” and “the status of federal and/or state COVID‑19 public health emergency guidelines.” In the event that EPA determines conditions warrant earlier termination of the policy, EPA will provide at least 7 days’ notice prior to termination of the policy.
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.
By Leah M. Song
As we have discussed in our previous blog posts, a growing form of climate change litigation in the United States consists of lawsuits filed by states or municipalities against private industry, and more specifically, the fossil-fuel industry. States, cities and other units of local government have filed lawsuits alleging state common law theories, including nuisance, trespass, failure to warn of the known impacts of climate change, and unjust enrichment.
The following cases are the primary cases that are currently ongoing: Rhode Island, Baltimore, Oakland, and San Mateo.
Defendants in these cases have universally tried to remove these cases to federal court where defendants presumably believe that they stand a much greater chance of getting the litigation dismissed. Generally, plaintiffs (including states, units of local government, and non-governmental organizations) asserting climate change claims against corporations prefer to be in state court where they can take advantage of perceived plaintiff-friendly common law or state statutes. On the other hand, defendants inevitably seek to remove such cases to federal court where they have had a higher level of success securing dismissals on the grounds that the issue is preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. See City of N.Y. v. BP P.L.C.. 325 F. Supp. 3d 466 (S.D.N.Y. 2018).
As further discussed below, in most of these cases, the district courts have remanded the cases back to state court and those decision have been appealed to the appellate courts. At the same time, defendants have sought to stay the court’s remand orders while the appeals proceed in federal court. These efforts to stay these remand orders have universally been unsuccessful, with the U.S. Supreme Court refusing to stay these orders, as seen here.
The following provides a brief overview and status update on each of these cases:
- In Mayor and City Council of Baltimore v. BP PLC, Baltimore brought action against various fossil-fuel companies for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, trespass, and violations of Maryland’s Consumer Protection Act. As noted above, defendants sought to remove the case to federal court but the district court remanded the case back to the state court.
On March 6, 2020, the Fourth Circuit Court of Appeals affirmed the district court’s order remanding the case back to state court. The district court rejected each of the fossil-fuel companies’ stated grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to a review of the district court’s conclusion that it lacked subject matter jurisdiction under the federal-officer removal statute pursuant to 28 U.S.C. § 1447(d) and 28 U.S.C. § 1442. The Fourth Circuit found none of the three contractual relationships on which the fossil-fuel companies based their claims for federal officer removal were sufficient to justify removal from state court, either because the relationships failed to satisfy the requirement that the fossil-fuel companies were “acting under” the direction of a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims for purposes of the nexus prong.
On March 31, 2020, the fossil-fuel companies filed a petition for a writ of certiorari in the Supreme Court, seeking review of the question of whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal officer removal statute… or the civil-rights removal statute.” Baltimore’s response was due by April 30, 2020, but has been extended to June 29, 2020 due to the COVID-19 pandemic.
- Rhode Island v. Chevron Corp. et al. was the first climate change damages case to be brought by a In this case, Rhode Island brought action against 21 different fossil-fuel companies for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Rhode Island Environmental Rights Act. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding and ocean acidification. The fossil-fuel companies had removed to federal court and Rhode Island tried to remand back to state court. On July 22, 2019, the federal court ordered the litigation to be remanded back to Rhode Island state court. While acknowledging that at least two federal courts had reached opposite conclusions, the court held that Rhode Island’s climate change claims were not preempted by the Clean Air Act and did not implicate a substantial federal question such that removal to federal court was appropriate. With respect to the Clean Air Act, the court found that the statute did not act to preempt all state-law causes of action for air pollution, including Rhode Island’s claims against defendants for releases of greenhouse gases. In addition, the court held that Rhode Island’s claims did not implicate a substantial federal question because “[t]he rights, duties, and rules of decision implicated by the complaint are all supplied by state law, without reference to anything federal.”
Rhode Island promptly notified the First Circuit of the Fourth Circuit’s decision in Baltimore, noting that that the Fourth Circuit’s decision “rejects the exact arguments raised … as to the proper scope of … appeal” as well as the fossil-fuel companies’ “tenuous justification for federal officer removal.” In response, Chevron filed a letter seeking to distinguish the Baltimore decision on the grounds that the Fourth Circuit “considered itself bound by [c]ircuit precedent” and had based its holding that federal officer removal was inapplicable on an incorrect characterization of plaintiffs’ claims in that case.
- On May 26, 2020, the Ninth Circuit joined the Fourth Circuit in Baltimore in concluding that these climate change cases alleging only state-common law claims (County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.) belonged in state court. In County of San Mateo v. Chevron Corp. et al., six California municipalities and counties sued more than 30 fossil-fuel companies in California state court. The plaintiffs brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. In City of Oakland v. BP p.l.c. et al., the cities of Oakland and San Francisco sued five fossil-fuel companies in state court under a theory of nuisance. Defendants sought to remove both cases to federal court. The San Mateo district court remanded the case back to state court while the Oakland district court refused to remand its case, finding instead that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit for failure to state a claim. Both cases were appealed to the Ninth Circuit.
The Ninth Circuit agreed with plaintiffs that two climate change lawsuits had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court. These cases were recently analyzed on Jenner & Block’s Corporate Environmental Lawyer here.
Shortly after these rulings, both Rhode Island and Boulder filed letters informing the respective courts of the Ninth Circuit’s San Mateo and Oakland decisions.
Although San Mateo and Oakland did not address the merits of plaintiffs’ common-law claims, these cases will certainly pose challenges for defendants seeking to remove these types of cases to federal court, and will likely affect plaintiffs’ and defendants’ strategies in climate change litigation moving forward.
Jenner & Block’s Corporate Environmental Lawyer will continue to update on climate change litigation cases as they unfold.
By Leah M. Song
On May 26, 2020, the Ninth Circuit agreed with plaintiffs that two climate change lawsuits—County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.—had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court.
A growing form of climate change litigation in the United States consists of lawsuits filed by states or municipalities against private industry, and more specifically, the fossil-fuel industry. States, cities and other units of local government have filed lawsuits alleging state common law theories, including nuisance, trespass, failure to warn of the known impacts of climate change, and unjust enrichment. The outcome of these cases thus far has hinged on whether or not the fossil fuel companies are able to successfully remove the litigation to federal court where they stand a much greater chance of getting the litigation dismissed. Generally, plaintiffs (including states, units of local government, and non-governmental organizations) asserting climate change claims against corporations prefer to be in state court where they can take advantage of perceived plaintiff-friendly common law or state statutes. On the other hand, defendants inevitably seek to remove such cases to federal court where they have had a higher level of success securing dismissals on the grounds that the issue is preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. See City of N.Y. v. BP P.L.C.. 325 F. Supp. 3d 466 (S.D.N.Y. 2018).
In County of San Mateo v. Chevron Corp. et al., six California municipalities and counties sued more than 30 fossil-fuel companies in California state court. The plaintiffs brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. In City of Oakland v. BP p.l.c. et al., the Cities of Oakland and San Francisco sued five fossil-fuel companies in state court under a theory of nuisance. The fossil-fuel companies removed both cases to federal court. The San Mateo district court remanded the case back to state court while the Oakland district court refused to remand the case back to state court, finding that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit. Both cases were appealed to the Ninth Circuit.
On May 26th, the Ninth Circuit joined the Fourth Circuit (Mayor and City Council of Baltimore v. BP P.L.C., et al., No. 19-1644 (4th Cir. Mar. 6, 2020)) in concluding that these climate change cases alleging only state-common law claim belonged in state court. In County of San Mateo v. Chevron Corp. et al., the Ninth Circuit emphasized its limited authority to review an order remanding a case back to state court under 28 U.S.C. § 1447(d). The Ninth Circuit therefore limited its review to determining whether the district court erred in holding that the federal court lacked subject matter jurisdiction under the federal-officer removal statute.
In order to determine whether the district court erred in holding that it did not have subject matter jurisdiction, the Ninth Circuit examined whether the companies were “acting under” a federal officer’s directions. The companies argued that they were “persons acting under” a federal officer based on several agreements with the government. However, the Ninth Circuit concluded that the companies’ activities under these agreements did not give rise to a relationship where they were “acting under” a federal officer. Accordingly, the Ninth Circuit court held that the fossil fuel companies failed to meet their burden for federal-officer removal and therefore affirmed the district court’s remand order.
In City of Oakland v. BP p.l.c. et al., the Ninth Circuit considered whether “the district court erred in determining that it had federal-question jurisdiction under 28 U.S.C. § 1331” and ultimately held that plaintiffs’ state common-law public nuisance claims did not arise under federal common law. The court acknowledged that there are exceptions to the well-pleaded complaint rule for claims that arise under federal law, but concluded that none of those exceptions applied here.
The court reasoned that “[t]he question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction under § 1331.” Furthermore, evaluation of the public nuisance claim would require factual determinations which are “not the type of claim for which federal-question lies.” The fossil fuel companies argued that the plaintiffs’ public nuisance claim was completely preempted by the Clean Air Act, but the court was not persuaded.
In response to defendants’ argument that by amending their complaint to assert a federal common law claim, the district court properly had subject matter jurisdiction under 28 U.S.C. § 1331, the Ninth Circuit noted that plaintiffs only amended their complaint in response to the district court’s statements that plaintiffs’ claims were governed by federal common law. Moreover, the Ninth Circuit noted that since a party violates § 1441(a) “if it removes a cases that is not fit for federal adjudication, a district court must remand the case to state court, even if subsequent action conferred subject-matter jurisdiction on the district court.”
Notwithstanding these conclusions, the Ninth Circuit noted that the district court had not addressed alternative bases for removal raised by defendants and therefore remanded the case back to the district court. However, the Ninth Circuit specifically noted that if the district court concludes that there are no valid bases for federal jurisdiction, the case should be remanded back to state court.
Although these rulings did not address the merits of plaintiffs’ common-law claims, these cases will certainly pose challenges for defendants seeking to remove these types of cases to federal court, and will likely affect plaintiffs’ and defendants’ strategies in climate change litigation moving forward. Jenner & Block’s Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.
New Executive Order Presses Agencies to Continue to Seek Regulatory Flexibility in Response to the Covid-19 Pandemic
By Leah M. Song
On May 19, 2020, the President issued an executive order titled “Regulatory Relief to Support Economic Recovery” (“Executive Order”). The Executive Order seeks to “overcome the effects the virus has had on [the] economy” and to that end, directs agencies and executive departments to "continue to remove barriers to the greatest engine ever known: the innovation, initiative and drive of the American people." To do so, executive departments and agencies are encouraged and directed to take appropriate action.
The Executive Order directs agencies to respond to the economic consequences of COVID‑19 by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” Agencies are directed, "to use, to the fullest extent possible and consistent with applicable law, any emergency authorities” to support the economic response to COVID-19. Agencies are charged with identifying “regulatory standards that may inhibit economic recovery” and take appropriate action to promote job creation and economic growth. This includes issuing proposed rules, exempting persons or entities from requirements, exercising appropriate temporary enforcement discretion or temporary time extensions.
The Executive Order further instructs agencies to provide compliance assistance for regulated entities and to “accelerate procedures by which a regulated person or entity may receive a pre-enforcement ruling.” Agencies should consider enforcement discretion policies for those that “have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.” Additionally, the Executive Order emphasized that agencies should “consider the principles of fairness” and “revise their procedures and practices in light of them.” The Executive Order recommends that agencies review regulatory standards and “determine which, if any, would promote economic recovery if made permanent.”
Consistent with this Executive Order, the Environmental Protection Agency (“EPA”) has previously issued a COVID-19-related policy regarding EPA's decision to exercise enforcement discretion with respect to non-compliance with certain environmental requirements (this enforcement policy was the subject of a prior Corporate Environmental blog). Although EPA's enforcement discretion policy has been challenged by several states and environmental organizations, the Executive Order would seem to diminish the likelihood that EPA will rescind its enforcement discretion policy in the near term.
Please feel free to contact the author with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.
On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA Administrator Andrew Wheeler stated that the “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”
This temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. To clarify, the policy does not apply to: a) any criminal violations or conditions of probation in criminal sentences, b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and c) imports. Additionally, the policy does not relieve any entity from preventing, responding to, or reporting accidental releases.
The temporary policy makes it clear that the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.
The policy addresses different categories of noncompliance differently and is broken into the following sections:
By Leah M. Song
In our previous blog post, we discussed the case of Kristen Giovanni, et al. v. Navy. As an update, on January 15, 2020, the district court judge said that the Navy did not have to pay to monitor residents for potential health issues linked to PFOS and PFOA exposure.
The court dismissed the suit finding that the regulator's failure to designate the chemicals as hazardous substances precluded the plaintiffs from filing under state law. To qualify for medical monitoring, Section 1115 of Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) stated that citizens must have been exposed to a hazardous substance, a designation that PFOA and PFOS lack under either federal or state law. The judge reasoned that “merely having the essential qualities of a hazardous waste…is not enough to be a hazardous substance under HSCA.”
Another basis for the Court’s ruling was that the state and federal governments are “well on their way to classifying PFAS as hazardous substances.” This may increase efforts to designate PFAS as hazardous substances under the federal Superfund law.
The plaintiffs’ attorney said that the decision would not be appealed but they would see what could be done in the future if the substances are designated as hazardous substances.
By Leah M. Song
Following a three-week bench trial, the New York Supreme Court ruled in favor of Exxon Mobil Corp. in the climate fraud case brought by New York’s attorney general, who accused the energy company of deceiving its investors about climate change-related risks to its business. In reaching this holding, Justice Barry Ostrager found that the attorney general “failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor,” which was the threshold for sustaining claims under the Martin Act.
As noted in Jenner & Block’s previous blog post, the attorney general began its investigation into Exxon Mobil in 2015. The attorney general’s investigation was grounded in New York's shareholder-protection statute, the Martin Act, as well as New York’s consumer protection and general business laws. After a three-year investigation, the attorney general’s office sued Exxon on October 24, 2018.
Exxon Mobil’s victory was foreshadowed when the attorney general dropped two of its four claims, one for common law fraud and one for equitable fraud, on the last day of trial. These claims were important to the state’s case because they alleged that Exxon Mobil’s misstatements were part of a scheme to mislead its investors and that Exxon Mobil’s investors had in fact relied on the misstatements when purchasing the company’s stock. Only two Martin Act investor fraud claims remained, which did not require the government to prove fraudulent intent.
An Exxon spokesperson said the ruling affirmed the position Exxon has held throughout the investigation and trial. "The court agreed that the attorney general failed to make a case, even with the extremely low threshold of the Martin Act in its favor," the spokesperson said.
Despite ruling against the attorney general, Judge Ostrager clarified that “nothing in [the] opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change through the emission of greenhouse gases in the production of its fossil fuel products.” The judge continued “ExxonMobil is in the business of producing energy, and this is a securities fraud case, not a climate change case.”
Exxon is battling similar accusations in other state and federal courts. Jenner & Block's Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.