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OnePoint Alert

April 22, 2020

Group Alleges that EPA’s COVID-19 Enforcement Policy Violates the Endangered Species Act

By Bernard F. Hawkins, Jr.

By notice letter dated April 21, 2020, the Center for Biological Diversity (“CBD”) notified the U.S. Environmental Protection Agency (“EPA” or “the Agency”) that the group believes EPA’s March 26, 2020 policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” (“Temporary Policy”) violates the Endangered Species Act, 16 U.S.C. §§ 1531–1544 (“ESA”). See attached link for “CBD Letter.” The group characterizes the Temporary Policy as “suspension of EPA enforcement of environmental legal obligations during the COVID-19 pandemic” and refers to the policy as “the non-enforcement policy.” CBD Letter at page 1. CBD contends that EPA’s suspension of monitoring, reporting and enforcement under the “non-enforcement policy” will “needlessly place endangered and threatened species at risk, in violation of Section 7 of the ESA, and that EPA has failed to take necessary and reasonable actions to address those impacts in the manner required by the ESA.” CBD Letter pages 1-2.

The CBD Letter relies upon Section 7 of the ESA alleging that it requires federal agencies “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.” CBD Letter at page 2. CBD contends that “action” is broad enough to include the Temporary Policy. The group alleges that “EPA has taken discretionary action that effectively authorizes regulated entities to forego routine compliance monitoring, integrity testing, sampling, lab analysis, training, and reporting or certification where the affected companies maintain that such actions are ‘not reasonably practicable due to COVID‐19.’ The non-enforcement policy leaves the determination of practicability to the regulated entity’s sole discretion, and the policy is in place indefinitely.” CBD Letter at page 2.

The CBD Letter contends that this alleged suspension of activity will create an immediate and serious risk to imperiled wildlife. The letter then identifies a number of scenarios in which CBD believes this alleged risk will arise. CBD claims there is no indication that EPA gave consideration of Section 7 of the ESA in issuing the Temporary Policy, and that EPA should have consulted with the agencies implementing the ESA prior to issuing the Temporary Policy. The CBD Letter also claims that “the non-enforcement policy provides total discretion to regulated entities to determine whether and how the policy will apply, without public disclosure and without adequate justification or oversight, creating a clear opportunity for abuse." CBD Letter at page 6. Based on these allegations, CBD notifies EPA that it considers the Agency to be in violation of the ESA, and it requests that EPA respond within fourteen days as to what steps the Agency is going to take to comply with Section 7 while the “non-enforcement policy is in effect” and to indicate what actions EPA is taking to ensure that “species have not and will not be jeopardized.” CBD Letter at page 7. Absent an “adequate explanation,” the letter indicates CBD will “invoke judicial remedies to enforce the EPA’s crucial Section 7 obligations.” CBD Letter at page 7.

EPA has responded to similar criticism by emphasizing that it is continuing to enforce the nation’s environmental laws. It reminds critics that case-by-case determinations for exercise of enforcement discretion are still required and that there are no guarantees that EPA will, after-the-fact, agree with any assertions for relief under the Temporary Policy. See attached link to EPA Letter dated April 2, 2020. The Temporary Policy provides that sources seeking relief should “make every effort to comply with their environmental compliance obligations.” Temporary Policy at page 2. Sources should act responsibly under the circumstances to minimize any effect or duration of any noncompliance, COVID-19 should be identified as the cause of the noncompliance, sources should return to compliance as soon as possible, and they should document the information addressed in the Temporary Policy. See Temporary Policy at page 3.

With respect to specified unpermitted discharges or releases resulting from failures of pollution control equipment, the Temporary Policy itself provides for notification as quickly as possible. EPA indicates regulated entities should continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. See Temporary Policy at pages 4-5. The Temporary Policy specifies that facilities “should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.” See Temporary Policy at page 4. EPA further indicates its intention to focus the Agency’s limited resources on any situation creating an acute risk or imminent threat to public health or the environment. See Temporary Policy at pages 4-5, and 7.

Regulated companies should also be aware of the potential for actions by state agencies, citizen and environmental groups when evaluating how to address any situation involving environmental compliance. They should preserve all available defenses and/or exceptions, and they should realize that extensions or deferrals may not be available or effective in some instances.