Bloomberg Law
April 16, 2020, 2:20 PMUpdated: April 16, 2020, 3:38 PM

EPA Pandemic Enforcement Policy Draws Environmental Lawsuit (1)

Ellen M. Gilmer
Ellen M. Gilmer

Environmental groups are asking a federal court to force the EPA to respond to their petition for increased transparency on the agency’s decision to ease some enforcement amid the coronavirus pandemic.

The Natural Resources Defense Council, Environmental Justice Health Alliance, Public Citizen, and other groups filed suit Thursday in the U.S. District Court for the Southern District of New York.

“During a pandemic that is hitting people with heart and lung disease the hardest, it is senseless to push forward a ‘don’t ask, don’t tell’ policy for polluters that will allow them to make our air and water dirtier without warning or repercussion,” NRDC President and CEO Gina McCarthy, who led the EPA during the Obama administration, said in a statement.

The groups say the Environmental Protection Agency is violating the Administrative Procedure Act by not quickly responding to the groups’ April 1 emergency rulemaking petition, which asked the agency to require public notice of any relaxed air and water quality monitoring.

“Plaintiffs’ petition seeks a common sense, straightforward rule that imposes minimal burden and will mitigate the most pernicious effects of EPA’s new policy,” the new lawsuit says. “EPA’s failure to respond to the petition is unreasonable and unlawful.”

The petition asked the agency to issue an emergency rule within seven days. The agency responded to the plea earlier this month with a public statement saying “the claims made by the petitioners are false and it is apparent they didn’t even read our guidance.”

EPA spokeswoman Andrea Woods said the agency couldn’t comment on pending litigation.

“As we’ve stated previously, the policy is a lawful and proper exercise of the Agency’s authority under extraordinary circumstances,” she said in an email.

‘Difficult Climb’

Democratic attorneys general and members of Congress also have called on the EPA to rescind the enforcement discretion policy or disclose when companies take advantage of it.

Arnold & Porter Kaye Scholer LLP lawyer Jonathan S. Martel said the courts tend to set a very high bar for “unreasonable delay” allegations against an agency.

“Asking a court to find that EPA has ‘unreasonably delayed’ in not acting on any petition for discretionary rulemaking is inherently a very difficult climb,” he said in an email.

But, he added, “Plaintiffs likely understand this and see value in highlighting their concerns through the lawsuit regardless of whether it is successful.”

Cause of Action: Administrative Procedure Act

Relief: Declaratory and injunctive relief; an order requiring the EPA to respond to the rulemaking petition within five days.

Response: The EPA said it couldn’t comment on pending litigation; a spokeswoman said “the policy is a lawful and proper exercise of the Agency’s authority under extraordinary circumstances.”

Attorneys: The U.S. Justice Department represents the EPA. NRDC and Public Citizen represent the plaintiffs.

The case is Nat. Res. Def. Council v. Bodine, S.D.N.Y., No. 1:20-cv-03058, 4/16/20.

(Adds comment from McCarthy, Martel in paragraphs 3 and 10-12.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Renee Schoof at