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EPA Gets More Time to Fend Off Enforcement Policy Challenge

May 6, 2020, 7:59 PM

A New York federal judge won’t resolve a challenge to the Trump administration’s pandemic-tied environmental enforcement policy as quickly as plaintiffs had hoped.

The U.S. District Court for the Southern District of New York on Wednesday granted the government’s request for more time to respond to environmentalists’ claims.

The lawsuit from the Natural Resources Defense Council and other groups challenges the Environmental Protection Agency’s announcement that companies won’t face penalties if precautions related to the coronavirus pandemic caused them to fall short of certain requirements to report and monitor pollution.

The challengers want to force the EPA to respond to their petition for increased transparency on companies that take advantage of the relaxed enforcement policy.

Chief Judge Colleen McMahon granted government lawyers’ request for extra time to respond to the environmental groups’ motion for summary judgment in the case. She gave the government until late May to file its brief—meaning a ruling isn’t expected until June at the earliest.

‘That’s Exactly the Problem’

During a phone hearing, McMahon pressed the environmental groups on whether they’re aware of examples of increased pollution from people abusing the new policy.

“We are not aware of any specific example, Your Honor, but that’s exactly the problem,” NRDC lawyer Aaron Colangelo said. “There’s no way that we would necessarily know that.”

Justice Department attorney Lucas Issacharoff said the government would make its counterarguments in a brief later this month.

The EPA has defended the enforcement discretion policy as a commonsense accommodation during the pandemic, and has stressed that the agency decides the validity of companies’ claims that they can’t meet the requirements.

McMahon vowed to wrap up the case as quickly as possible.

“Let’s just get this thing teed up and either throw it out, or decide in favor of the plaintiffs, and do that promptly,” she said.

Separately on Wednesday, two former EPA enforcement chiefs filed a proposed amicus brief supporting environmental groups in the case.

Obama-era chief Cynthia Giles and Clinton-era chief Steven A. Herman say they’re convinced that public disclosure of which companies are seeking enforcement breaks “would encourage regulated sources to limit their requests for relief to justifiable circumstances.”

The case is Nat. Res. Def. Council v. Bodine, S.D.N.Y., No. 1:20-cv-03058, status conference 5/6/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com

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