May 14, 2020
State attorneys general for New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia filed suit in the United States District Court for the Southern District of New York against the U.S. Environmental Protection Agency (“EPA” or “Agency”) regarding the Agency’s March 26, 2020 policy, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program,” addressing enforcement – also referred to as the “Temporary Policy.” See link for a copy of the Compliant. The allegations in this Complaint are similar to those of environmental groups presented in a Complaint filed on April 16, 2020. The Complaint in the present action alleges that it is intended to “challenge a final agency policy under which EPA has stated it ‘will not’ enforce a wide range of monitoring and reporting requirements under federal environmental laws.” Complaint at page 1. The Complaint further contends that the EPA Temporary Policy makes it optional to report non-compliance and is a “waiver of these requirements, which are foundational to our federal environmental laws, exceedi[ng] EPA’s authority.” Id. at page 2.
The Plaintiffs request a declaration from the Court that the Temporary Policy was improperly adopted and is in excess of EPA’s statutory jurisdiction, authority or limitations, is not in accordance with law and is arbitrary and capricious. They request vacating the Temporary Policy and enjoining EPA from applying it, and they request costs and attorneys' fees along with any other relief the Court deems proper. See Complaint at page 36.
As summarized in previous articles on this subject, EPA has addressed the type of allegations set out in the Complaint, explaining that the Temporary Policy does not provide some wholescale suspension of environmental compliance obligations and that EPA is continuing to enforce the nation’s environmental laws. See articles at: Environmental Groups Sue EPA Over Use of COVID-19 Enforcement Discretion Policy and Attorneys General from Fourteen States Express Concerns Over EPA COVID-19 Enforcement Discretion Policy for further discussion on these points.
In conclusion, chief law enforcement officers of nine states have filed suit against EPA challenging the Agency’s Temporary Policy on COVID-19. Sources considering this Temporary Policy should continue to account for the fact that states may take a different position in pursuing enforcement actions and should consult any COVID-19 policy provided by that state. This caution is particularly relevant in the nine states participating in this lawsuit. Sources also need to account for the reality that environmental groups have challenged the use of the Temporary Policy and may pursue independent actions against sources that seek to take advantage of the Temporary Policy. Likewise, sources should continue to preserve all other defenses which may be available through other means, such as by regulation, permits, other documents and/or voluntary disclosure provisions, and must realize that some obligations may not be such that they are suitable for extensions or avoidance.
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