Natural Res. Def. Council v. Bodine

MEMORANDUM DECISION AND ORDER   On March 26, 2020, the Environmental Protection Agency (“EPA”) issued a Temporary Enforcement Policy (the “Policy”) that describes EPA’s intention to exercise “enforcement discretion” during the COVID-19 public health emergency for violations of certain routine monitoring and reporting obligations. In pertinent part, the Policy advises that, “In general,” EPA does not “expect to seek [civil] penalties” for such violations (1) “where EPA agrees that COVID-19 is the cause of the noncompliance,” and (2) the regulated entity takes steps outlined in the Policy to document its noncompliance and return to compliance with its monitoring and reporting obligations as soon as possible. The Policy applies to nearly every industry in the country: chemical manufacturing, power plants, refineries, mining, factory farms, and every other federally regulated source of pollution. The Administrative Procedures Act (“APA”), which applies to EPA as well as other government agencies, permits “interested person[s]….to petition for the issuance…of a rule.” 5 U.S.C. §553(e). Plaintiffs — fifteen environmental justice, public health, and public interest organizations — sought to exercise that right. On April 1 — just five days after EPA announced the Policy — Plaintiffs petitioned EPA to publish a rule, on an emergency basis and effective immediately, that would require any entity that suspends monitoring and reporting because of the COVID-19 pandemic to provide written notice to EPA, which EPA would then make available to the public (the “Petition”). The APA requires an agency to “conclude a matter presented to it” “within a reasonable time,” id. §555(b). Plaintiffs filed suit on April 16, 2020, just fifteen days after submitting the Petition, and filed a motion for summary judgment thirteen days thereafter. The complaint does not challenge the lawfulness of the Policy; presently pending before this court is a different lawsuit, brought by nine State Attorneys General, that does precisely that. See State of New York et al v. EPA, 20-cv-3714-CM. Rather, it seeks a declaration that EPA has delayed unreasonably in responding to Plaintiffs’ petition for emergency rulemaking, in violation of the APA, see id. §706(1) (stating that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed”), and petitions for a writ of mandamus directing EPA to respond. EPA cross moved for summary judgment, challenging Plaintiffs’ standing, raising various jurisdictional defenses, and denying that it has unreasonably delayed in responding to the Petition. It is perfectly obvious that, at the time Plaintiffs brought this lawsuit, the EPA had not “unreasonably” delayed its response to the Petition. Whether the passage of three months since the commencement of this lawsuit constitutes unreasonable delay would present an interesting question if Plaintiffs had standing to pursue it. However, because Plaintiffs have not established that they satisfy Article III’s arcane standing requirements where they seek to vindicate a purely procedural right, Defendants’ cross-motion for summary judgment must be GRANTED. Meanwhile, the real litigation — over the legality of the Policy itself — is presently being briefed in an action brought by nine State Attorneys General. That is where the action will — and should — take place. FACTUAL BACKGROUND I. EPA’s COVID-19 Enforcement Policy On March 26, 2020, EPA published a memorandum titled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” (Dkt. No. 16, Wu Decl. Ex. 1 (“the Policy”).) The memorandum announces a “temporary policy regarding EPA enforcement of environmental legal obligations during this time.” (Id. at 1.) The Policy, issued without advance notice to the public, was retroactive to March 13, 2020. As originally promulgated, no end date was specified. (Id.) The Policy was the outgrowth of EPA’s receipt of numerous inquiries from regulated entities and co-regulators concerning whether they would risk civil penalties if they were unable, due to the shutdowns occasioned by COVID-19, to comply with certain otherwise required activities. The Policy recognizes that, due to potential worker shortages, social distancing, and other disruptions from the COVID-19 pandemic, “there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations and statutes.” (Id. at 2.) Those required activities include monitoring, sampling, lab analysis, reporting, and certifying compliance with governing pollution limits (referred to collectively herein as “monitoring and reporting”). (Id. at 3.) The Policy states that entities should use existing procedures under a governing statute, regulation, or permit to disclose violations of monitoring and reporting requirements. (Id.) But if the regulated entity determines that “reporting is not reasonably practicable due to COVID-19,” the entity should “maintain this information internally and make it available to the EPA or an authorized state or tribe upon request.” (Id.) The Policy also advised regulated entities that, “In general,” EPA “does not expect” to seek penalties if regulated entities are unable to comply with “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting for certification obligations” if (1) “EPA agrees that COVID-19 was the cause of the noncompliance” and (2) the entity provides supporting documentation to the EPA upon request.” (Id.) But the Policy does not give such entities a free pass. Instead, where entities have made “every effort to comply with their environmental compliance obligations,” and COVID-19 has made compliance “not reasonably practicable,” id. at 2-3, Part I.A of the Policy directs entities to: a. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19; b. Identify the specific nature and dates of the noncompliance; c. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity; d. Return to compliance as soon as possible; and e. Document the information, action, or condition specified in a. through d. Id. at 3. The Policy does not excuse all reporting of noncompliance; it specifically states that, COVID-19 notwithstanding, companies “should” disclose if a facility “suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations on emissions to air or discharges to water, or land disposal, or other unauthorized releases” and should also disclose any noncompliance that “may create an acute risk or an imminent threat.” (Id. at 4.) The Policy does not relieve regulated entities of obligations imposed by consent decrees (id.); does not relieve public water systems of their “heightened responsibility to protect public health” (id. at 6); does not “relieve[] any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law” (id. at 7); and does not apply to criminal violations (id.). For example, to the extent that any entity is required to report violations as part of an annual certification, the entity would be required to do so notwithstanding the Policy. EPA listed examples of the routine monitoring and reporting requirements covered by the Policy, including stack tests,¹ continuous emission monitoring systems,² fenceline monitoring,³ leak detection and repair monitoring,⁴ tank integrity testing,⁵ effluent sampling,⁶ and Toxics Release Inventory reporting.⁷ (Id. at 3 nn. 2-7.) This list covers virtually every type of monitoring related to EPA’s regulation of air and water pollution, chemical releases, oil spills, and hazardous waste storage. The data that are reported to EPA after monitoring informs members of the public about local environmental quality, help workers prevent exposure to hazardous chemicals, and help emergency managers prepare for and respond to chemical releases. In addition to expressing EPA’s intent to exercise enforcement discretion subject to the above, the Policy also indicates that, if a facility (1) is a generator of hazardous waste, and (2) due to COVID-19 is unable to transfer waste off-site within the time period required under the Resource Conservation and Recovery Act (“RCRA”), EPA will not treat those hazardous waste generators as “treatment, storage, and disposal” facilities under the RCRA “as an exercise of enforcement discretion,” as long as the facility “continue[s] to properly label and store such waste and take the steps identified under Part I.A.” (Policy at 5.) For the period of time during which the Policy is in effect, such facilities will not be subject to the disaster prevention, preparedness, and response requirements that otherwise govern storage and disposal of hazardous waste. 42 U.S.C. §6924(a). Finally, if a facility (1) is an animal feeding operation, and (2) due to COVID-19 is unable to transfer animals off-site, and (3) has so many animals on-site that it would otherwise meet the regulatory definition of a concentrated animal feeding operation (“CAFO”), EPA will not treat the animal feeding operation as a CAFO. (Policy at 5-6.) As a result, such entities would not be subject to pollution controls contemplated by the Clean Water Act permit program, 40 C.F.R. §122.23(d)-(e), as long as the Policy remained in effect. On June 29, 2020, after the cross motions were fully briefed, EPA amended the Policy to announce that it would terminate on August 31, 2020. (Dkt. No. 56, Ex. A, “Policy Amendment.”) In the announcement, EPA explained that “the EPA will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” (Policy Amendment at 2.) The Amendment further states that “EPA may terminate this temporary policy…on a state or national basis, in whole or in part, at any earlier time…including as appropriate the expiration or lifting of ‘stay at home’ order in a state, the status of federal and/or state COVID-19 public health emergency guidelines, and/or other relevant factors or considerations.” (Id.) II. Plaintiffs’ Petition for an Emergency Rule On April 1, 2020, just five days after the Policy was announced, Plaintiffs petitioned the agency under the APA for the issuance of an emergency rule. (See Dkt. No. 1-1 (Petition).) The rule they proposed would require any entity that stops complying with monitoring or reporting requirements for reasons related to COVID-19 to notify EPA and the relevant state immediately, disclosing: (1) the pollution limit or standard involved, (2) the relevant statute, regulation, or permit provision that compels the monitoring or reporting at issue, (3) whether and to what extent the entity’s operations are continuing in other respects, (4) a justification for the monitoring or reporting lapses, and (5) a description of the efforts being made to return to compliance as soon as possible. (Id. at 6.) To ensure prompt public notice of any regulated entity’s failure to conduct required monitoring or reporting in reliance on the Policy, (id. at 1, 6-7), the Petition asked that the rule require EPA to publish all such notifications online within a day of receipt, including the name and location of the facility. (Id.) The Petition further asked that EPA require facilities to report when they return to compliance, and for EPA to publish those submissions online as well. (Id. at 6-7.) EPA derives its authority to issue substantive rules from the various individual statutes it is responsible for implementing. (Dkt. No. 44, Declaration of Anne Idsal 9.) The Petition asserted that EPA would have statutory authority to issue the proposed rule under at least five different environmental laws: the Clean Water Act (“CWA”), 33 U.S.C. §1251 et seq.; the Clean Air Act (“CAA”), 42 U.S.C. §7401 et seq; the Safe Drinking Water Act (“SDWA”), 42 U.S.C. §300f et seq; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §6901 et seq.; and the Emergency Planning and Community Right-to-Know Act (“ECPRA”), 42 U.S.C. §1101 et seq. (See Dkt. No. 16, Plaintiffs’ Memorandum in Support of Motion for Summary Judgment and for Expedited Consideration Pursuant to 28 U.S.C. §1657 (“Pl. Br.”) at 8.) However, the Petition, like this lawsuit, was not brought pursuant to any of those substantive laws, but was filed in accordance with the right Congress conferred on members of the public by the APA. The Petition, while requesting that Plaintiffs’ interim final rule issue within seven days and become effective immediately, asked EPA to solicit public comment on the interim rule while it issues and amends the rule in the future as appropriate. Id. at 20. III. Plaintiffs’ Justifications for the Emergency Rule Plaintiffs have submitted articles and reports tending to show that environmental monitoring and reporting requirements deter pollution, and that companies pollute less, and less often, when they are required to monitor and report their polluting activities publicly. (Dkt. No. 1-1 at 11 & nn. 17-19; Wu Decl. Ex. 12, at 3.) EPA does not dispute that environmental monitoring and reporting, in general, have the effect of deterring pollution, though it argues that this “general proposition” does not apply to the particular circumstances of the Policy (which issued in response to a national emergency that greatly impacted the ability of workers to do their jobs and radically limited movement around the nation) or to the resulting Petition. (See Dkt. No. 43, Defendants’ Response and Counter-Statement of Material Facts Pursuant to Local Civil Rule 56.1(b) (“Defs. 56.1(b)) at 9.) Plaintiffs have also submitted declarations tending to show that environmental crises and public health disasters of the past decade were caused or exacerbated by a failure to perform monitoring and reporting, including the Elk River chemical spill in West Virginia, and a refinery explosion and gas release in Richmond, California. (Dkt. No. 26, Decl. of Melissa Mays

35-40; Dkt. No. 28, Decl. of Michele Roberts 8; Wu Decl. Ex. 14. At