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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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OnePoint Alert

June 4, 2020

EPA Responds To Environmental Group Allegations on EPA COVID-19 Temporary Enforcement Policy

The US Environmental Protection Agency (“EPA” or the “the Agency”) has responded to various environmental groups suing the Agency in federal court in the Southern District of New York concerning EPA’s March 26, 2020 policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” (“Temporary Policy”). In its Memorandum, EPA characterizes the relief sought by the Plaintiffs as follows:

Plaintiffs do not challenge this Policy. Instead, Plaintiffs have demanded that EPA undertake, within seven days, a multi-statute rulemaking imposing an enforceable requirement that all regulated entities unable to comply with EPA’s monitoring and reporting requirements because of COVID-19 file a public justification of their reasons and other information. The disclosure Plaintiffs seek is not required by any existing statute or regulation. Now, mere weeks after filing the Petition, Plaintiffs claim that EPA has unreasonably delayed in not immediately responding to a petition for rulemaking imposing these new public reporting burdens on regulated entities struggling to meet existing reporting requirements due to the COVID-19 crisis.

Memorandum at page 1.

EPA presents several responses to these allegations:

First, the Agency explains that the Plaintiffs have no standing:

Plaintiffs’ claimed injuries in fact—on behalf of their members and in their own right as organizations—rest upon the unfounded assertion that the Policy will cause environmental noncompliance, rather than addressing EPA’s Case 1:20-cv-03058-CM Document 42 Filed 05/29/20 Page 7 of 46 response as what it is: a response to circumstances where the COVID-19 public health crisis itself has in fact caused the noncompliance. Moreover, Plaintiffs’ claimed injury to their members rests not only upon the assumption that previously law-abiding entities will suddenly turn scofflaw in response to the Policy, but that they will do so in a way that will impact Plaintiffs’ members specifically, something Plaintiffs have not even begun to demonstrate. Plaintiffs also fail to demonstrate that any purported injuries are traceable to the alleged wrong—the failure to act on the Petition seeking a rule to require new reporting and a new public database—as opposed to the Policy itself, which Plaintiffs do not challenge in this case. Plaintiffs’ claim of injury to themselves as organizations, which is premised on a harm in terms of lost access to information, meanwhile, fails for the additional reason that Plaintiffs do not have a right to the information they seek.

Memorandum at pages 1-2. EPA explains the commonsense response the Agency has taken to addressing COVID-19 enforcement policy. The EPA memo includes some interesting discussion of how EPA intends to apply the temporary enforcement policy.

EPA further addresses why Plaintiffs did not meet statutory requirements for claims under the Resource Conservation and Recovery Act, Safe Drinking Water Act, Clean Air Act. Beyond this, to the extent that the Court reaches the merits of Plaintiffs’ allegation that EPA has engaged in “unreasonable delay,” in issuing a COVID-19 rule, EPA further responds that Plaintiffs “have not identified any case in which courts applying a ‘rule of reason’ have found less than a year to be ‘unreasonable delay,’ and courts have repeatedly found the passage of multiple years to be ‘reasonable.’” EPA also focuses on the deference that is afforded to the Agency’s good faith determination of its own priorities, especially those related to enforcement discretion. That is particularly the case in light of COVID-19, where EPA has continued to pursue enforcement on a priority basis during the pandemic. Memo at pages 2-3. 

For the above-reasons, EPA requests the Court deny Plaintiffs’ motion for summary judgement and grant EPA’s cross-motion for summary judgment on the grounds that Plaintiffs lack standing; the Court lacks subject-matter jurisdiction in part; and there has been no unreasonable delay.