Natural Resources Defense Council v. Assistant Administrator Susan Parker Bodine

Background

On March 26, 2020, the Environmental Protection Agency issued a temporary COVID-19 enforcement policy. The policy stated that, in general, the agency did not expect to seek civil penalties for certain routine monitoring and reporting violations when COVID-19 made compliance not reasonably practicable, the agency agreed that COVID-19 caused the noncompliance, and the regulated entity documented the problem and took steps toward compliance. The policy covered activities involving air pollution, water pollution, hazardous waste, chemical releases, and other environmental obligations, but it did not excuse all reporting, eliminate substantive pollution limits, or apply to criminal violations.

On April 1, 2020, the fifteen plaintiffs petitioned the EPA for an emergency rule. They wanted facilities that suspended COVID-19-related monitoring or reporting to notify the EPA and relevant state authorities, with the notices—including the facility’s name and location—published online. The plaintiffs also sought public reporting when facilities returned to compliance.

The plaintiffs filed this lawsuit on April 16, 2020. Their complaint alleged that the EPA had unreasonably delayed responding to the petition, in violation of the Administrative Procedure Act, and requested an order requiring the EPA to respond. The complaint did not challenge the legality of the temporary enforcement policy itself. The plaintiffs later moved for summary judgment, and the defendants filed a cross-motion for summary judgment.

Standing

The court addressed standing first. Standing is the constitutional requirement that a plaintiff show a concrete injury, a connection between that injury and the challenged conduct, and a likelihood that the requested relief would remedy the injury.

The plaintiffs argued that they suffered an informational injury because the enforcement policy allegedly reduced the reliability of environmental monitoring data. The court rejected that argument because the plaintiffs had not shown that any existing law entitled them to the information they sought. The proposed reporting rule did not yet exist, and the case asked the court only to order the EPA to respond to the petition—not to issue the proposed rule.

The court also rejected associational standing, which allows an organization to sue based on injuries to its members. The plaintiffs relied on members’ fears that the policy could lead to increased pollution and chemical hazards without public notice. The court found this theory too speculative. The plaintiffs had not identified actual or imminent environmental violations at nearby facilities, taken air-quality measurements, tested water samples, or shown that neighborhood pollution had increased.

The court also found that the alleged injury was not fairly traceable to the EPA’s delay in answering the petition. In the court’s view, the plaintiffs’ theory depended on several unestablished possibilities: that facilities would stop monitoring or reporting, that the policy would lead them to increase pollution, and that the resulting harm would be caused by the EPA’s delay rather than by the COVID-19 circumstances themselves. The policy also continued to require reporting of certain acute risks, imminent threats, and equipment failures that could cause unauthorized releases.

Ruling

The court stated that when the complaint was filed, only fifteen days had passed since the petition was submitted, so the EPA had plainly not yet delayed unreasonably. The court noted that whether approximately three months of delay later became unreasonable might present a different question, but only if the plaintiffs had standing.

The court concluded that the plaintiffs had not established a sufficiently concrete injury or a sufficient connection between their alleged injury and the EPA’s delay. It therefore did not decide whether the delay was unreasonable or whether the requested order would have remedied the alleged injury.

Chief Judge Colleen McMahon denied the plaintiffs’ motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The clerk was directed to remove both motions from the list of open motions.