Coronavirus ("COVID-19)/U.S. Environmental Protection Agency Temporary Policy Addressing Enforcement Discretion: Environmental Organizations File Judicial Challenge

A number of environmental organizations filed an April 16th lawsuit in the United States District Court for the Southern District of New York challenging the United States Environmental Protection Agency’s (“EPA”) Temporary Policy Regarding Enforcement Discretion/Compliance Assurance. See Case No. 20-cv-3058.

The organizations filing the lawsuit included:

• Natural Resources Defense Council
• Environmental Justice Health Alliance
• Public Citizen
• Catskill Mountainkeeper
• Center for Coalfield Justice
• Clean Water Action
• Coming Clean
• Flint Rising
• Indigenous Environmental Network
• Just Transition Alliance
• Los Jardines Institute
• Southeast Environmental Task Force
• Texas Environmental Justice Advocacy Services
• Water You Fighting For
• West Harlem Environmental Action, Inc.   (collectively, “NRDC”)

The challenged EPA Policy is titled:

COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (“Policy”)

See previous blog post describing the Policy here.

NRDC’s Complaint for Declaratory and Injunctive Relief (“Complaint”) argues that EPA’s Policy:

• . . . was announced without notice and without consulting with affected communities
• . . . creates a serious and immediate risk that industrial facilities and other regulated entities will stop monitoring and reporting for compliance with pollution limits
• . . . presents a huge threat to downstream, downwind, and fenceline communities. . .
• . . . data and reporting implicated by EPA’s Policy also inform local emergency managers and first responders about chemical risks from nearby industrial facilities. . .
• . . . information collected under these reporting programs also plays a key role in a range of PA rulemakings and state permitting proceedings
• . . . environmental monitoring and reporting serve an important deterrent function. . .
• . . . EPA’s Policy is especially dangerous in light of recent research showing that increased air pollution causes a statistically significant increase in the COVID-19 death rate
• . . . Policy will be borne disproportionately by people of color and low-income people

The Complaint asks that EPA’s failure to respond to a previously filed Petition be deemed unreasonable and unlawful. It also asks that EPA be ordered to issue a final response to the Petition and that the plaintiffs be awarded their costs and reasonable attorneys’ fees.

A copy of the Complaint can be downloaded here.