EPA Defends Easing Pollution Enforcement Policy For Virus

By Morgan Conley
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Law360 (June 1, 2020, 3:44 PM EDT) -- The U.S. Environmental Protection Agency told a federal court that environmental groups suing it for relaxing how it handles pollution standards noncompliance during the coronavirus outbreak are seeking unreasonable relief for a hypothetical injury.

The agency urged a Manhattan federal court Friday to deny summary judgment to a coalition of 14 environmental justice, public health and public interest organizations led by the Natural Resources Defense Council. The EPA told the court the suit wrongfully alleges a new policy will encourage noncompliance when in fact violations would happen with or without the policy and being more lenient with companies in unprecedented times is well within its discretion.

The EPA told the court it should grant summary judgment in its favor instead, arguing the advocates lack standing because their argument rests on the belief that not only will previously law-abiding entities "suddenly turn scofflaw in response to the policy" but that unlawful actions would affect the groups' members specifically. Such speculation cannot support their claims, the agency argued.

The advocates sued the EPA on April 16, alleging its policy shift in March would put people who live near industrial facilities at risk by both reducing the amount of information available to the public and potentially increasing the amount of pollution. The advocates take issue with part of the policy that allows the companies to keep track of the lapses internally and only tell the EPA later on if it asks, according to the advocates, which say they are worried the public will be left in the dark.

The advocates sought to have the EPA issue an interim final rule that would require any company that stops reporting pollution numbers to tell the EPA in a public notice in order to keep people informed. The advocates say the agency ignored their petition, in violation of the Administrative Procedure Act, which requires a timely response to any potential rules presented.

The EPA told the court Friday the advocates have an unrealistic idea of what constitutes timely, saying "the rule of reason does not trigger an obligation to impose a novel reporting requirement at the drop of a hat."

"Plaintiffs ask the court to accept the extraordinary proposition that EPA should have acted in 15 days on a petition for a multistatute rulemaking imposing new reporting burdens on regulated entities already struggling to meet existing regulatory requirements due to the COVID-19 crisis," the agency said in the brief. "Just to state this proposition demonstrates that it is not reasonable."

The EPA also told the court that even if the group's suit cleared the other hurdles to be heard, at least three of the five environmental statutes they invoke put jurisdiction at different courts, making New York federal court the wrong venue for the dispute.

The courts of appeals would have jurisdiction over unreasonable delay claims under two of the statutes, the Safe Drinking Water Act and the Resource Conservation and Recovery Act. And only the D.C. Circuit would have the authority to review the claim under the Clean Air Act, the agency said.

"While we can't discuss ongoing litigation, our policy is carefully tailored to address the ongoing public health emergency," an EPA spokesperson told Law360 in an email Monday. " As state and local restrictions change or are lifted, so too may be the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply."

A representative for the Department of Justice declined to comment. Representatives for the advocacy groups didn't immediately respond to requests for comment Monday.

The advocacy groups are represented by Michelle Wu, Aaron Colangelo and Jared E. Knicley of the Natural Resources Defense Council and Allison Zieve of Public Citizen.

The EPA is represented by Lucas Issacharoff and Rachael Doud of the U.S. Attorney's Office for the Southern District of New York.

The case is Natural Resources Defense Council et al. v. Assistant Administrator Susan Parker Bodine et al., case number 1:20-cv-03058, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Juan Carlos Rodriguez, Adrian Cruz and Michael Phillis. Editing by John Campbell.

For a reprint of this article, please contact reprints@law360.com.

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