In Natural Res. Def. Council v. Bodine, 20-cv-03058-CM, Chief Judge Colleen McMahon granted EPA’s cross-motion for summary judgment dismissing the case. A copy of the Decision may be found here.

The case involved the EPA’s Temporary Enforcement Policy allowing it to exercise “enforcement discretion” during the COVID-19 emergency for violating routine monitoring and reporting. This Policy applies to nearly every industry in the United States including chemical plants, power plants, refineries, mining, factory farms, and every other federally regulated source of pollution. The NRDC, along with other environmental justice groups, petitioned the EPA to publish an emergency rule requiring any entity suspending monitoring and reporting to provide written notice to the EPA, which would then provide such notice to the public.[1]

Only 15 days later, plaintiffs filed a complaint alleging the EPA delayed unreasonably in responding to plaintiffs’ petition for emergency rule making.[2] The plaintiffs also petitioned for a writ of mandamus directing EPA to respond. Meanwhile, the legality of the Policy is being challenged in a separate pending case, State of New York et al. v. EPA, 20-cv-3714-CM.

The Court granted the EPA summary judgment and dismissed plaintiffs’ complaint. The Court held that plaintiffs lacked standing to sue and failed to show legal entitlement to the information sought. The EPA’s Policy of deciding not to seek civil penalties where COVID-19 has made routine monitoring and reporting not reasonably practical did not cause an informational injury. Nor did plaintiffs establish associational standing. The EPA’s purported delay in responding to plaintiffs’ petition did not harm their members or present a material risk of doing so.

Yoars Law has years of experience with environmental regulations and litigation. We focus on being proactive business and legal advisors for our clients, guiding them through the sophisticated legal and regulatory backdrop in which they must operate, and being zealot advocates when needed. We also provide transparent and predictable legal fees so our clients can manage their budgets effectively.

[1] The Administrative Procedures Act (“APA”), which applies to EPA, permits “interested person[s]….to petition for the issuance… of a rule.” 5 U.S.C. § 553(e). The APA requires an agency to “conclude a matter presented to it” “within a reasonable time,” 5 U.S.C. § 555(b).

[2] Plaintiffs allege EPA violated APA, see 5 U.S.C. § 706(1); a court shall “compel agency action unlawfully withheld or unreasonably delayed.”

 

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