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Law360 (June 3, 2021, 7:57 PM EDT ) A New York federal judge on Wednesday tossed green groups' lawsuit alleging the U.S. Environmental Protection Agency violated the Endangered Species Act by issuing a policy temporarily suspending some compliance obligations during the coronavirus pandemic.
U.S. District Judge Jed Rakoff said the Center for Biological Diversity, Riverkeeper and Waterkeeper don't have standing to pursue their claims because they couldn't prove there was a risk of real harm to species by the EPA's policy. The groups' lawsuit said the agency failed to properly ensure the policy wouldn't jeopardize protected wildlife.
"The EPA does not deny that if excess pollutants were to enter the habitat of the Atlantic and shortnose sturgeons — endangered species studied by members of the plaintiff organizations — then those members would suffer an injury sufficient to confer standing," Judge Rakoff said.
But he sided with the agency and found that the environmental groups didn't present any evidence that a jury might use to find that the policy caused a real risk of excess discharge into sturgeon habitat.
According to the groups' August complaint, the EPA failed to consult with the U.S. Fish and Wildlife Service and National Marine Fisheries Service prior to issuing the controversial policy despite being required to under the law.
In March 2020 as the COVID-19 pandemic engulfed the globe, the EPA's Office of Enforcement and Compliance Assurance issued a policy to the agency's various state, tribal and local government partners outlining the agency's approach to enforcing regulations when entities find themselves unable to comply due to COVID-19-related circumstances such as personnel shortages or travel restrictions.
The policy generally divided compliance obligations into tiers and treated potential violations differently. Significant leeway was given to businesses that could show they couldn't meet routine compliance monitoring and reporting requirements, while those at risk of allowing discharges or emissions that could damage human health and the environment were to be scrutinized more closely.
But Judge Rakoff rejected the green groups' argument that removing the threat of civil penalties "essentially gave the green light for non-compliance."
"The policy presumed routine reporting deficiencies, not excess discharge; plaintiffs must show a real risk of excess discharge in order to show a risk of real harm to sturgeon," the judge said. "Indeed, not only does the policy not presume excess discharge; it requires permittees to notify EPA if they anticipate that COVID-19 or related monitoring failures could cause excess discharge."
He said the groups didn't present any evidence that the EPA was alerted to any excess discharges, including any that would affect sturgeon.
The parties did not respond to requests for comment Thursday.
The EPA is represented by Lucas Issacharoff of the Office of the U.S. Attorney for the Southern District of New York.
Riverkeeper and Waterkeeper are represented by Todd D. Ommen, Karl S. Coplan and Daniel Conant of Pace Environmental Litigation Clinic Inc.
The Center for Biological Diversity is represented by its own Jared M. Margolis.
The case is Center for Biological Diversity et al. v. U.S. Environmental Protection Agency et al., case number 1:20-cv-06572, in the U.S. District Court for the Southern District of New York.
--Editing by Ellen Johnson.
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