Environmental Groups Move for Summary Judgment in EPA COVID-19 Policy Suit

Plaintiffs the Center for Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. have asked a Southern District of New York judge to grant summary judgment in their favor in a suit challenging the U.S. Environmental Protection Agency’s (EPA) failure to comply with the Endangered Species Act (ESA) with regard to the agency’s decision to suspend environmental compliance requirements during the COVID-19 pandemic. The motion for summary judgment, filed Monday, claims that the EPA’s rollout of policy outlined in a Mar. 26 memorandum (the Policy), allows the agency to “ignore its vitally important ESA duties.”

The March memorandum entitled “COVID‐19 Implications for EPA’s Enforcement and Compliance Assurance Program,” purportedly propounded “unprecedented policy” to suspend legal obligations, including monitoring, reporting, and enforcement requirements across all industries. In effect, the plaintiffs’ motion avers, this allowed “thousands of industrial polluters to bypass their environmental compliance obligations.” The plaintiffs’ August complaint claimed that by easing these regulations, endangered species are more vulnerable to harmful pollutant exposure and critical habitat degradation, though the plaintiffs also acknowledged that “certain steps may be appropriate to protect people from harm during the pandemic…”

In support of their bid to overturn the Policy, the plaintiffs advance several legal arguments. First, they argue that the EPA acted arbitrarily and capriciously by failing to consult with the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service (NMFS) before announcing the Policy in violation of the ESA. They claim that the “duty to prevent jeopardy—actions that will reduce an ESA-protected species ability to survive and recover in the wild—in consultation with the [FWS and NMFS] is one of the ESA’s cornerstones for the conservation of imperiled species.”

According to the plaintiffs, this action contradicts both the ESA’s plain language and Congress’s legislative intent to prioritize endangered species welfare. The plaintiffs warn that the “EPA’s refusal to address these impacts through ESA consultation sets a dangerous precedent for the abdication of core ESA duties.”

Second, and in the alternative, the environmental groups contend that the EPA’s failure to consult with the wildlife services about the Policy constitutes “agency action that has been unlawfully withheld” in violation of Section 706(1) of the Administrative Procedure Act. An agency action is “unlawfully withheld” when the agency refuses to comply with a statutory obligation, the plaintiffs explain. The plaintiffs request declaratory judgment, an order both enjoining “any further reliance on or reinstatement of the Policy in the absence of compliance with ESA Section 7,” and requiring the EPA to consult with the wildlife services regarding the Policy within 30 days.  

Riverkeeper and Waterkeeper are represented by Pace Environmental Litigation Clinic, Inc., and the Center for Biological Diversity by its own counsel. The EPA is represented by the Southern District of New York United States Attorney’s Office.