EPA Granted Summary Judgment In COVID-19-Policy Related Suit

On Friday, Southern District of New York Judge Jed S. Rakoff ruled in favor of the Environmental Protection Agency (EPA) in a case filed by environmental organizations purporting that in modifying its actions during the COVID-19 pandemic it caused harm to the environment and endangered animals. This order from the court comes after the court held an oral argument in the matter. 

The lawsuit was initially filled in August 2020; the Center for Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. claimed that the EPA was not fulfilling its responsibilities under the Endangered Species Act (ESA) and the Administrative Procedure Act (APA) because it suspended reporting requirements during the COVID-19 pandemic. The temporary enforcement policy was in effect through August 31, 2020 and, according to the plaintiffs, likely caused increased harm to endangered species populations. The plaintiffs filed their Motion for Summary Judgement on October 12, 2020 and the defendants filed a cross-motion on November 20. 

The EPA argued in its motion and accompanying memorandum for the court to dismiss the lawsuit or to rule in its favor. The defendant purported that the complaint is moot because the policy ended in August, shortly after it was filed.  It also claimed that the remedies suggested by the plaintiffs “are premature” because there has not been a review of whether the temporarily altered regulations actually affected species or critical habitats. 

The memorandum explained that the policy is not an action under the ESA, because it did not “authorize, fund, or carry out any activity or program,” and argued that the EPA’s decision to suspend enforcement was not an affirmative action, so the plaintiffs did not have a claim under the ESA. They also said the claim from the plaintiffs under the APA is precluded. The Southern District of New York agreed with the defendant, ruling to grant the EPA its request for summary judgment. 

Riverkeeper and Waterkeeper are represented by Pace Environmental Litigation Clinic, Inc. and the Center for Biological Diversity by its own counsel. The EPA is represented by the Southern District of New York United States Attorney’s Office.