By Kelly Zegers

Law360 (June 10, 2020, 9:04 PM EDT) -- A trio of conservation groups informed the U.S. Environmental Protection Agency on Wednesday of their intent to sue over a policy that suspended monitoring and reporting requirements for certain entities during the COVID-19 pandemic.

The Center for Biological Diversity, Waterkeeper Alliance Inc. and Riverkeeper Inc. say the policy gives polluting industries, including oil and gas companies, discretion to determine whether to comply with such requirements under laws including the Clean Water, Clear Air and Safe Drinking Water Acts and threatens already imperiled species.

The groups claim the EPA failed to take necessary and reasonable steps to ensure the policy set forth in late March would not jeopardize listed species, in violation of the Endangered Species Act.

"Clean air and clean water are critical to people and wildlife and yet the Trump administration is doing everything it can to give polluters free rein," Jared Margolis, senior attorney at the Center for Biological Diversity said Wednesday in a press release. "The EPA is supposed to protect us all from pollution and this memo allows them to walk away from their duties. It's just wrong."

The notice comes as a coalition of nine states led by New York are seeking an immediate block to the policy in a suit filed in May. They argue that if the policy remains in effect while the litigation plays out, their residents will be irreparably harmed before the court can decide whether to overturn it, New York Attorney General Letitia James said in a press release Tuesday.

The EPA issued the temporary policy to various state, tribal and local government partners in response to potential worker shortages and travel restrictions in place to limit the spread of pandemic, which may limit how they can carry out reporting obligations and other requirements.

It generally divides compliance obligations into tiers, with significant leeway given to businesses that show they can't meet routine compliance monitoring and reporting requirements. Meanwhile, those at risk of allowing discharges or emissions that could damage human health and the environment are to be scrutinized more closely.

The conservation groups also claim the EPA failed to respond to Freedom of Information Act requests for all communications with the American Petroleum Institute and others that resulted in the policy, according to the group's announcement.

Daniel E. Estrin, the Waterkeeper Alliance's general counsel and advocacy director, called the policy the "EPA's latest free pass to polluters" and "a total abdication of its core responsibility to enforce federal environmental laws and of its mission to protect human health and the environment," according to a press release.

As an example of their concern, the groups pointed to the potential for harm to species in the Hudson River amid suspension of monitoring and reporting requirements under the Clean Water Act's pretreatment program for industrial and commercial wastewater discharges.

Absent strict adherence to those regulations, the impact on species like the endangered shortnose and Atlantic sturgeon in the river will remain unknown.

"The pandemic is no excuse for the Trump administration to abdicate its duty to protect our air, water, communities and environment," Hudson Riverkeeper Paul Gallay said in the group's press release.

According to the March memorandum by Susan Bodine, who leads the EPA's Office of Enforcement and Compliance Assurance, the agency will assess the need for and scope of the regulations on a continuing basis.

In a challenge to the policy launched last month, states claim it incentivizes industrial pollution at a time when low income and minority communities in particular are also suffering disproportionately from COVID-19.

Aside from New York, the states challenging the policy are California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia and Vermont.

The enforcement of laws that address pollution is "a matter of life and death," James said in a press release.

"But right when the health of our communities is suffering the most, the Trump EPA is turning its back on them, greenlighting industry to pollute more and care less," the state attorney general said. "The EPA's non-enforcement policy is ill-founded, illogical and illegal, and I'm urging the court to protect New Yorkers by putting a halt to it."

An injunction would "simply restore the status quo of case-by-case enforcement under existing EPA policies," the states argued, saying that the agency didn't explain why that approach would be unworkable.

The states assert that the EPA has acted beyond the scope of its authority, and that the "arbitrary and capricious" nonenforcement policy is an abdication of EPA's statutory responsibilities and was promulgated without notice and comment.

An EPA spokesperson told Law360 that the agency does not comment on ongoing litigation. The agency did not immediately respond to a request for comment on the conservation groups' intent to sue. 

The states are represented by Michael J. Myers, Meredith Lee-Clark, Samantha Liskow, Brian Lusignan, Patrick Omilian, Benjamin Cole, Anthony Dvarskas, Lemuel M. Srolovic and Matthew Colangelo of the New York attorney general's office and by their respective AG offices.

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

The case is State of New York et al. v. U.S. Environmental Protection Agency et al., case number 1:20-cv-03714, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Joyce Hanson and Juan Carlos Rodriguez. Editing by Gemma Horowitz.

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