16 June 2020

Fights over EPA’s Enforcement Discretion Policy Continue and May Expand

On June 10, 2020, three environmental groups sent a notice of intent to sue multiple federal agencies, including the U.S. Environmental Protection Agency (EPA). The notice claims that EPA failed to take necessary and reasonable actions to address impacts on endangered and threatened species as allegedly required by the Endangered Species Act, before EPA issued its March 26 COVID-19 enforcement discretion guidance, discussed in further detail here. EPA already faces two lawsuits over its COVID-19 policy. In State of New York v. EPA, the state plaintiffs have filed a motion seeking a preliminary injunction to bar the use of the policy. In NRDC v. Bodine, the plaintiffs have sought an order directing EPA to respond to their petition for an emergency rule that, inter alia, would require a source to inform EPA in writing if it relies on the policy to delay or avoid monitoring or reporting requirements. The parties are now briefing cross motions for summary judgment, with the court promising an early ruling.