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Law360 (July 9, 2020, 8:31 PM EDT ) A New York federal judge has ruled that environmental groups can't show they were injured by the U.S. Environmental Protection Agency's allegedly delayed response to a request for more disclosure around a move to temporarily suspend some compliance obligations during the novel coronavirus crisis.
The Natural Resources Defense Council along with several other groups can't show that they are being deprived of information they are entitled to or that their members will face more pollution because of the agency's actions, U.S. District Judge Colleen McMahon wrote Wednesday, granting summary judgment to the government.
Judge McMahon said a separate lawsuit by several states including New York against the EPA's compliance policy itself — as opposed to the agency's alleged failure to timely respond to a rulemaking request — is where "the action will and should take place."
"Plaintiffs have not identified any 'record, report or information' that EPA is statutorily obligated to disclose that it will not disclose under the policy," the judge said. "Instead they argue that if EPA granted the petition and promulgated the rule, they would be entitled to information about persons who were not reporting this information to the public if EPA granted the petition and promulgated the rule plaintiffs advocate. But that is a bootstrap argument."
In March, the EPA said it would temporarily suspend some compliance obligations for entities affected by the coronavirus crisis. The policy gave leeway to businesses that can't meet routine compliance monitoring reporting obligations, and the groups took issue with the move, including a provision that allows companies to keep track of lapses internally and only tell the EPA if it asks later on. They are concerned that people near industrial facilities are placed under greater risk — less oversight means a higher likelihood of increased pollution, according to the advocates.
The groups wanted the EPA to issue a policy to require companies that have reporting or monitoring lapses to tell the EPA, which would then publicize the information. They filed suit April 16, arguing that under the Administrative Procedures Act the agency has taken too long to respond to the groups' emergency rulemaking petition.
Because the advocacy groups can't show they are being deprived of information they are entitled to, they lack standing, according to the judge.
Nor can the plaintiffs show that their members would be injured, according to the judge. The agency argues that there is no evidence the COVID-19 policy "is certain to result in increased pollution" because of loosened compliance obligations. Judge McMahon said the alleged increased pollution "is built on multiple layers of speculation."
"[The advocates] offer not a scintilla of evidence that pollution is increasing at any regulated entity that may or may not be monitoring and reporting during the ongoing national crisis," the judge said. "Since they admit that the plaintiff organizations themselves engage in monitoring activities, their failure to offer more than speculation about what might happen dooms their cause."
Plus, the allegation is that the agency hasn't responded to its rulemaking petition, "which is simply not the cause of the environmental harms that plaintiffs allege."
The EPA said it was reviewing the decision.
A representative with the environmental groups did not immediately respond to a request for comment.
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 Morgan Conley, Juan Carlos Rodriguez and Adrian Cruz. Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
