Case 1:20-cv-06572-JSR Document 1 Filed 08/18/20 Page 1 of 21
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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF NEW YORK
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`
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`Plaintiffs,
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`CENTER FOR BIOLOGICAL DIVERSITY,
`WATERKEEPER ALLIANCE, INC., and
`RIVERKEEPER, INC.,
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`
`
` v.
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY and ANDREW
`WHEELER, in his official capacity as
`Administrator of the United States Environmental
`Protection Agency
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`
`
`Defendants.
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`
`
`
`
`
`
` Case No. ___________
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`
`
` COMPLAINT FOR DECLARATORY
` AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`Plaintiffs Center for Biological Diversity, Waterkeeper Alliance, Inc., and
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`Riverkeeper, Inc. (collectively, “Conservation Groups”) challenge the failure of Defendants U.S.
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`Environmental Protection Agency and Administrator Wheeler (collectively, “EPA”) to comply
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`with their mandatory duties under the Endangered Species Act, 16 U.S.C. §§ 1531–1544 (“ESA”
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`or the “Act”). Defendants violated the ESA by failing to initiate and complete ESA Section 7
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`consultation to ensure that EPA’s actions in response to the COVID-19 pandemic—as described
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`in a March 26, 2020 Memorandum entitled “COVID-19 Implications for EPA’s Enforcement and
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`Compliance Assurance Program” setting forth EPA’s policy regarding suspension of enforcement
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`of environmental legal obligations (the “Non-Enforcement Policy”)—will not result in jeopardy
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`to listed species or in the destruction or adverse modification of such species’ critical habitat.
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`2.
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`EPA’s Non-Enforcement Policy suspends monitoring and reporting requirements
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`under the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Resource Conservation and
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`Recovery Act, and Emergency Planning and Community-Right-to-Know Act. Many permits
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`issued under these statutes contain specific requirements and limitations designed to protect listed
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`species and critical habitats. Suspension of monitoring and reporting requirements therefore
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`creates an immediate and serious risk to imperiled wildlife, which is heightened by EPA’s broad
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`invitation to regulated industries to suspend such activities without any public disclosure.
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`3.
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`Conservation Groups understand that COVID-19 presents unique challenges and
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`that certain measures may be necessary to protect individuals involved in implementing programs
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`under EPA’s jurisdiction. However, this does not mean that EPA may simply ignore its vitally
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`important, and legally required, ESA Section 7 duties and disregard potential impacts on
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`imperiled species and their critical habitats. Section 7 consultation is the heart of the ESA and is
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`vital to ensure that imperiled species are not jeopardized by fully evaluating and averting or
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`mitigating harm.
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`4.
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`There can be no doubt that EPA’s Non-Enforcement Policy triggers the agency’s
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`Section 7 consultation obligations. Defendants have taken a discretionary action that effectively
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`authorizes regulated entities to forego actions that are required by law, including routine
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`compliance monitoring, integrity testing, sampling, lab analysis, and reporting or certification
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`requirements where the affected companies and municipalities maintain that such actions are not
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`reasonably practicable due to COVID-19. EPA’s policy implicates permits that limit pollution to
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`protect the environment, including for listed species; therefore, the policy “may affect” listed
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`species—the low threshold for triggering the Section 7 consultation requirements—by allowing
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`unchecked pollution in habitats that listed species rely on, placing endangered and threatened
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`species at risk. Section 7 consultation on the EPA Non-Enforcement Policy is thus required by the
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`plain language of the ESA. 16 U.S.C. § 1536(a)(2).
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`5.
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`EPA has failed, however, to undertake any Section 7 consultation with the U.S.
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`Fish and Wildlife Service or the National Marine Fisheries Service (the “Services”) on the Non-
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`Enforcement Policy. EPA failed even to follow the Services’ emergency consultation process,
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`which allows agencies to take immediate action without first going through formal consultation in
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`the event of an emergency, but still requires the agencies to notify the Services and complete
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`formal consultation once the emergency is over.
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`6.
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`EPA did not notify and seek advice from the Services when it instituted the Non-
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`Enforcement Policy, and it has not indicated any plans to undertake the required formal
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`consultation, even once the policy is rescinded. Further, since there is no obligation within the
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`Non-Enforcement Policy for regulated entities to “catch-up” with certain missed monitoring or
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`reporting during the period that the policy will be in effect, absent such consultation there will be
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`no way for EPA to ensure that its actions have not jeopardized listed species or critical habitat, as
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`the ESA requires.
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`7.
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`According to a memorandum issued by EPA on June 29, 2020, the Non-
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`Enforcement Policy is scheduled to terminate on August 31, 2020. However, there is no assurance
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`that the policy will be rescinded by that date, particularly given the recent surge in COVID-19
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`cases. Regardless, EPA has failed to initiate any ESA Section 7 consultation to ensure that missed
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`monitoring and reporting requirements and non-enforcement of important legal obligations
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`pursuant to the Non-Enforcement Policy will not jeopardize listed species, in direct violation of
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`EPA’s mandatory duties under the ESA.
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`8.
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`Conservation Groups therefore bring suit to declare that EPA is in violation of
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`Section 7 of the ESA and to compel EPA to complete formal consultation regarding the impacts
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`of the Non-Enforcement Policy on listed species by a date certain, in order to ensure that EPA’s
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`suspension of monitoring and reporting obligations has not and will not jeopardize listed species,
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`or adversely modify or destroy the critical habitat of such species, and to enjoin any further
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`reliance on the policy.
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`JURISDICTION AND VENUE
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`9.
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`This court has jurisdiction over this action pursuant to 16 U.S.C. § 1540(c) and (g)
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`(actions arising under the ESA citizen suit provision); 5 U.S.C. § 702 (review of agency action
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`under the Administrative Procedure Act (“APA”)); 28 U.S.C. § 1331 (federal question
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`jurisdiction); 28 U.S.C. § 1346 (action against the United States); and 28 U.S.C. § 1361 (action to
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`compel an officer of the United States to perform his or her duty). The court may grant the relief
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`requested under the ESA, 16 U.S.C. § 1540(g), the APA, 5 U.S.C. §§ 701–706, and 28 U.S.C. §
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`2201-02 (declaratory and injunctive relief).
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`10. By written notice to Defendants dated April 21, 2020, Plaintiff Center for
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`Biological Diversity provided notice of its intent to file suit, as required by the ESA. 16 U.S.C. §
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`1540(g). Further, by written notice to Defendants dated June 10, 2020, Plaintiffs Center for
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`Biological Diversity, Waterkeeper Alliance, Inc., and Riverkeeper, Inc. provided supplemental
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`notice of their intent to file suit more than sixty days prior to filing of this complaint, as required
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`by the ESA. Id.
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`11.
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`Plaintiffs’ notice letters demanded that Defendants advise the Conservation Groups
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`of what steps were being taken to satisfy their obligations and comply with ESA Section 7
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`consultation requirements regarding the Non-Enforcement Policy.
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`12.
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`Plaintiffs’ notice letters also demanded that Defendants clarify what actions will be
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`taken to ensure that listed species and their critical habitat have not been and will not be
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`jeopardized by Defendant’s suspension of monitoring, reporting, and enforcement during the
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`COVID-19 pandemic.
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`13. Defendants have failed to respond or remedy the alleged violations, and therefore
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`an actual, justiciable controversy exists within the meaning of 28 U.S.C. § 2201(a).
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`14. Venue is proper in the Southern District of New York pursuant to 28 U.S.C. §
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`1391(e), as a substantial part of the events or omissions giving rise to the claim occurred in this
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`District, two of the Defendants have offices in this District, and Plaintiffs Waterkeeper Alliance,
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`Inc., and Riverkeeper, Inc., reside or maintain their principal places of business within the
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`Southern District of New York.
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`PARTIES
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`15.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the “Center”) is a non-profit
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`conservation organization headquartered in Tucson, Arizona, with offices and members
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`throughout the United States and Mexico, including members in New York. Through science,
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`policy, law, and creative media, the Center works to secure a future for all species, great or small,
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`hovering on the brink of extinction. The Center has over 74,000 members throughout the United
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`States and the world. The Center and its members are concerned with, and have concrete interests
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`in, the conservation of imperiled species and the effective implementation of the ESA. The
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`Center’s members have professional, aesthetic, spiritual, and/or recreational interests in imperiled
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`species and are similarly interested in the health of these species’ habitat. These members include
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`those who have studied, viewed, photographed, and otherwise appreciated threatened and
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`endangered species that may be affected by the EPA’s Non-Enforcement Policy; those who live
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`near these species, habitats, and ecosystems; and those who intend to visit and enjoy these
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`species, habitats and ecosystems in the future.
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`16.
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`Plaintiff WATERKEEPER ALLIANCE, INC. (“Waterkeeper”) is a not-for-profit
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`corporation organized under the laws of New York. Waterkeeper is a member-supported,
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`international environmental advocacy organization with its headquarters in New York.
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`Waterkeeper strengthens and grows a global network of grassroots leaders protecting everyone’s
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`right to clean water. Comprised of more than 350 member and affiliate organizations around the
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`world (including Plaintiff Riverkeeper, Inc.), as well as more than 12,000 individual supporting
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`members, Waterkeeper is the largest and fastest growing non-profit focused solely on clean water.
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`Waterkeeper's goal is drinkable, swimmable, and fishable water everywhere. Under its Clean
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`Water Defense campaign, Waterkeeper fights attempts to weaken current environmental laws and
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`regulations, such as the Clean Water Act and the ESA, while promoting stronger legal safeguards
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`for the world’s water resources on behalf of Waterkeeper’s member and affiliate organizations
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`and all of our respective individual members. Waterkeeper holds polluters accountable and
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`advocates for vigilant enforcement of environmental laws.
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`17.
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`Plaintiff RIVERKEEPER, INC. (“Riverkeeper”) is a not-for-profit environmental
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`organization existing under the laws of the state of New York, headquartered in Ossining, New
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`York. Formed in 1966 as the Hudson River Fishermen’s Association, Riverkeeper’s mission
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`includes safeguarding the environmental, recreational, and commercial integrity of the Hudson
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`River, its tributaries, and the waters of New York City. Riverkeeper and its 3,807 members work
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`to restore and protect the Hudson River Estuary habitat for both the federally listed endangered
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`shortnose sturgeon and the Atlantic sturgeon-New York Bight Distinct Population Segment,
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`which have been listed by the National Marine Fisheries Service as endangered species.
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`18.
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`Plaintiffs’ members and staff have researched, studied, observed, and sought
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`protection for endangered species that are adversely affected by the suspension of monitoring and
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`reporting obligations directed by EPA-issued permits. Furthermore, Plaintiffs’ members and staff
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`have visited and observed or sought out threatened and endangered species that are imperiled by
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`the non-enforcement of EPA permits and the suspension of various effluent sampling programs.
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`Plaintiffs’ members and staff intend to continue to visit and observe, or attempt to visit and
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`observe, these species in the near future.
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`19. Notwithstanding that information on specific regulated entities that have not
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`complied with monitoring and reporting requirements due to COVID-19 is constrained by the
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`limited data EPA has made public on waivers under the Non-Enforcement Policy, and that the
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`information that has been made publicly available does not specify impacts to listed species—thus
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`reinforcing the need for ESA Section 7 consultation—Plaintiffs have obtained data regarding
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`several specific regulated entities that have sought waivers for compliance with Clean Water Act
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`permitting obligations under the Non-Enforcement Policy for commercial and industrial
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`operations where listed species are present and may be adversely affected by the suspension of
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`monitoring, reporting, and enforcement resulting from the Non-Enforcement Policy.
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`20.
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`For example, Plaintiffs have learned of waivers under the Non-Enforcement Policy
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`for compliance with permits—including for organic chemicals manufacturing, sewage discharge
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`and water pollution control facilities—where increased pollution output poses risks to listed
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`species, including critically endangered Atlantic and shortnose sturgeon in the Delaware and
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`Connecticut Rivers. The Plaintiff organizations have a long history of taking action to protect
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`these imperiled sturgeon, including through litigation to limit and prevent pollution that degrades
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`their habitat (indeed, Waterkeeper is so committed to protecting sturgeon that it made the
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`sturgeon its logo). Plaintiffs have members that enjoy and study listed sturgeon, including at least
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`one member who is a fish biologist and professor that has published articles on sturgeon with a
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`focus on population dynamics, abundance, distribution, and recruitment of sturgeon, including
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`how they are affected by anthropogenic pollution. This member has spent much of his
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`professional life studying sturgeon and plans on continuing to study these species and write books
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`and articles about them. Any degradation of essential sturgeon habitat associated with the
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`suspension of monitoring, reporting, and enforcement requirements hampers this member’s
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`ability to undertake research in the future, thereby harming his academic and aesthetic interests, as
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`well as the Conservation Groups’ interests in protecting these sturgeon species.
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`21.
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`Plaintiffs’ members and staff derive scientific, recreational, spiritual, and aesthetic
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`benefits from imperiled species’ existence in the wild, and their interest in maintaining the species
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`inhabiting the forests and rivers of areas monitored and reported through EPA-issued permits and
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`programs is entirely dependent on the continued existence of healthy, sustainable, and accessible
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`ecosystems and populations. Any activities that “may affect” or destroy, degrade, or diminish
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`these areas, or that kill, injure, harm, harass, or displace populations of listed species, interfere
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`with Plaintiffs’ staff and members’ use and enjoyment of the areas and species.
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`22.
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`Plaintiffs’ members and staff include scientists who study various threatened and
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`endangered species, and whose interests in studying and enjoying these species and their habitats
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`are entirely dependent on the continued existence of such species. Any action that interferes with
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`and harms these species also harms those members’ interests and enjoyment in studying those
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`species. Any loss of individuals or habitat would hamper their ability to undertake such research
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`in the future, thereby harming their academic and aesthetic interests in those species.
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`23.
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`EPA’s suspension of monitoring and reporting requirements pursuant to the Non-
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`Enforcement Policy directly and irreparably injures Plaintiffs’ interests. EPA’s failure to comply
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`with the requirements of the ESA and APA delays, avoids, and undermines protections that are
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`necessary to secure Plaintiffs’ interests in the existence of listed species and their critical habitat.
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`24.
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`Plaintiffs have also suffered procedural injuries from Defendants’ violations of the
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`ESA in issuing the Non-Enforcement Policy without full and adequate analysis of the impacts to
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`listed species through Section 7 consultation. These injuries are connected to Plaintiffs’
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`substantive recreational, scientific, spiritual, and aesthetic interests. Plaintiffs’ members and staff
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`rely on Defendants to comply with the requirements of the ESA and prepare adequate
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`environmental analyses as required by the statute. Plaintiffs rely on these analyses to achieve their
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`organizational purposes, including monitoring the impacts of permitting obligations on listed
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`species habitats; monitoring legal compliance concerning species’ management; educating
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`members, directors, staff, and the public concerning species management and the state of the
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`environment; and advocating for policies that protect habitat and wildlife.
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`25.
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`Plaintiffs are also injured through impairment of their fundamental missions to
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`protect the environment and imperiled species, and diversion of resources from other critical tasks
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`that would not have been necessary absent EPA’s actions. Defendants’ failure to comply with
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`Section 7 of the ESA has caused Plaintiffs to divert and expend resources and staff to learn about
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`the effects of the Non-Enforcement Policy, including through making and reviewing Freedom of
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`Information Act requests and examining hundreds of permits for which a waiver was sought
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`under the policy in order to determine whether listed species may have been adversely affected by
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`unmonitored pollution. Plaintiffs are non-profit conservation organizations with limited resources
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`that can be dedicated to their core mission to protect species and the habitats they rely on.
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`Defendants’ actions impede Plaintiffs’ ability to carry out their missions, and directly undercuts
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`decades of successful work by Plaintiffs to enforce environmental laws that protect listed species
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`and the habitats they rely on. Defendants’ actions have also stifled the flow of data on pollution
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`discharge and environmental degradation that are vital to Plaintiffs’ efforts to conserve and
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`recover listed species and protect critical habitat. The Non-Enforcement Policy is therefore
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`harming, and will continue to harm, the Conservation Groups by requiring them to divert their
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`limited resources and personnel away from other activities in an attempt to fill the gap left by
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`EPA’s failure to ensure, through ESA Section 7 consultation, that listed species are not
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`jeopardized by the lack of monitoring and reporting under the Non-Enforcement Policy.
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`26.
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`These are actual, concrete injuries to Plaintiffs, caused by EPA’s failure to comply
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`with the ESA and its implementing regulations. The interests and organizational purposes of
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`Plaintiffs and their staff and members are directly and irreparably injured by Defendants’
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`violations of law as described in this Complaint. Unless this Court grants the requested relief and
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`orders Defendants to comply with the ESA, harm to protected species will continue to accrue, and
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`the aesthetic, recreational, educational, professional, scientific, and spiritual, and conservation
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`interests of Plaintiffs and their staff and members will continue to be adversely affected. The
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`relief requested will directly redress those injuries.
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`27.
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`Defendant ANDREW WHEELER is the Administrator of the United States
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`Environmental Protection Agency. He is sued only in his official capacity.
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`28.
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`Defendant UNITED STATES ENVIRONMENTAL PROTECTION AGENCY is
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`an agency of the federal government, charged with administering and enforcing permits under
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`various environmental laws, including the Clean Water Act, Clean Air Act, and the Safe Drinking
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`Water Act. EPA has a statutory responsibility under the ESA to ensure that any discretionary
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`action it takes which “may affect” listed species is not likely to jeopardize the continued existence
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`of any such species through Section 7 consultation.
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`A.
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`The Endangered Species Act
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`STATUTORY FRAMEWORK
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`29. With the ESA, Congress intended endangered species to be afforded the highest of
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`priorities. The ESA’s purpose is “to provide a means whereby the ecosystems upon which
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`endangered species and threatened species depend may be conserved, [and] to provide a program
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`for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b).
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`30.
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`Under the ESA, conservation means “the use of all methods and procedures which
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`are necessary to bring any endangered species or threatened species to the point at which the
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`measures provided pursuant to this chapter are no longer necessary.” Id. § 1532(3).
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`31.
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`The ESA assigns responsibility to implement the statute to the Secretaries of
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`Commerce and Interior, which in turn have delegated responsibility to the National Marine
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`Fisheries Service and the U.S. Fish and Wildlife Service, respectively. 50 C.F.R. § 402.01(b).
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`32.
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`To fulfill the substantive purposes of the ESA, federal agencies are required to
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`engage in Section 7 consultation with the Services to “insure that any action authorized, funded,
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`or carried out by such agency . . . is not likely to jeopardize the continued existence of any
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`endangered species or threatened species or result in the destruction or adverse modification of
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`habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2).
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`33.
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`Section 7 consultation is required for “any action [that] may affect listed species or
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`critical habitat.” 50 C.F.R. § 402.14. Agency “action” is defined broadly in the ESA’s
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`implementing regulations to include “all activities or programs of any kind authorized, funded, or
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`carried out, in whole or in part, by Federal agencies,” such as the promulgation of regulations, the
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`granting of permits, or actions directly or indirectly causing modifications to the land, water, or
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`air. Id. § 402.02.
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`34.
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`The duties in ESA Section 7 are only fulfilled by an agency’s satisfaction of the
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`consultation requirements that are set forth in the implementing regulations for Section 7 of the
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`ESA, 50 C.F.R. §§ 402.10-402.16, and only after the agency lawfully complies with these
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`requirements may an action that “may affect” a protected species go forward.
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`35.
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`Each federal agency must review its actions at “the earliest possible time” to
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`determine whether any action “may affect” listed species or their critical habitat in the “action
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`area.” Id. § 402.14(a). The “action area” encompasses all areas that would be “affected directly or
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`indirectly by the Federal action and not merely the immediate area involved in the action.” Id. §
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`402.02. The term “may affect” is broadly construed to include “[a]ny possible effect, whether
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`beneficial, benign, adverse, or of an undetermined character,” and thus is easily triggered.
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`Interagency Cooperation – Endangered Species Act of 1973, As Amended, 51 Fed. Reg. 19,926
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`(June 3, 1986).
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`36.
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`If an action agency concludes that the action is “likely to adversely affect” listed
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`species or critical habitat, the agency must engage in “formal consultation” with the Service(s) to
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`meet the ESA’s substantive “no jeopardy” mandate. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.
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`37.
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`Formal ESA consultation commences with the action agency’s written request for
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`consultation and concludes with Services’ issuance of a “biological opinion.” 50 C.F.R. §
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`402.14(g)(4).
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`38. During formal consultation, the Service(s) and the action agency must evaluate the
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`“effects of the action,” including all direct and indirect effects of the proposed action, plus the
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`effects of actions that are interrelated or interdependent, added to all existing environmental
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`conditions—that is, the “environmental baseline.” Id. § 402.02. The environmental baseline
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`includes the “past and present impacts of all Federal, State, or private actions and other human
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`activities in the action area . . . .” Id. The effects of the action must be considered together with
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`“cumulative effects,” which are “those effects of future State or private activities, not involving
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`Federal activities, that are reasonably certain to occur within the action area of the Federal action
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`subject to consultation.” Id.
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`39.
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`The biological opinion states the Service(s)’ opinion as to whether the effects of
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`the action are “likely to jeopardize the continued existence of listed species or result in the
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`destruction or adverse modification of critical habitat.” Id. § 402.14(g)(4). To “jeopardize the
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`continued existence of” means “to engage in an action that reasonably would be expected, directly
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`or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed
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`species in the wild by reducing the reproduction, numbers, or distribution of that species.” Id.
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`§ 402.02. The determination of whether an activity is likely to jeopardize the continued existence
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`of a species must be based solely on “the best scientific and commercial data available,” 16
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`U.S.C. § 1536(a)(2), and the Service(s) must use the best available science in formulating the
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`biological opinion and approving incidental take through formal consultation. 50 C.F.R. §
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`402.14(g)(8).
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`40.
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`If the Services determine that the action is likely to jeopardize a species, the
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`biological opinion must outline “reasonable and prudent alternatives” to the action, if any exist,
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`that will avoid jeopardy and “which [the agency] believes would not violate [Section 7(a)(2)].”
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`16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). The Services may also “suggest
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`modifications” to the action during the course of consultation to “avoid the likelihood of adverse
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`effects” to the listed species even when not necessary to avoid jeopardy. 50 C.F.R. § 402.13(b).
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`41.
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`Conversely, pursuant to Section 7(b)(4) of the ESA, a biological opinion that
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`concludes that the agency action is not likely to jeopardize the continued existence of a listed
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`species must include an “incidental take statement” (“ITS”), which must specify the impact of any
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`allowable take of individual members of the species, provide reasonable and prudent measures
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`(“RPMs”) necessary to minimize the impact of that take, and set forth terms and conditions that
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`must be followed to implement such measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i)(1),
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`(3).
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`42.
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`The ESA requires the Services to conclude the formal consultation process within
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`90 days of the date the consultation was initiated unless the Services and the action agency agree
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`to extend the consultation for a specific time period. 16 U.S.C. § 1536(b)(1)(A); 50 C.F.R. §
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`402.14(e). The Section 7 consultation process must be completed prior to the agency undertaking
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`any action that would adversely affect listed species or critical habitat. See 16 U.S.C. § 1536(d)
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`(stating that pending completion of consultation, the applicant and Federal agency “shall not
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`make any irreversible or irretrievable commitment of resources with respect to the agency action
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`which has the effect of foreclosing the formulation or implementation of any reasonable and
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`prudent alternative measures” to prevent jeopardy).
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`43.
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`Pursuant to the ESA implementing regulations at 50 C.F.R. § 402.05 and the
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`Services’ Endangered Species Consultation Handbook, in the event of an emergency (i.e. natural
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`disaster or other calamity) where the response “may affect” listed species but requires the agency
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`to take immediate action without first going through formal consultation, the agency must notify
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`the Services and seek advice to minimize the effects of the emergency response, and then initiate
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`formal consultation after the emergency is over to document impacts and establish measures to
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`mitigate such impacts to listed species.
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`44. After the issuance of a biological opinion and “where discretionary Federal
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`involvement or control over the action has been retained or is authorized by law,” the action
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`agency and the Services must reinitiate formal consultation if, inter alia, “[t]he amount or extent
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`of taking specified in the incidental take statement is exceeded; new information reveals effects of
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`the action that may affect listed species or critical habitat in a manner or to an extent not
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`previously considered; the identified action is subsequently modified in a manner that causes an
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`effect to the listed species . . . that was not considered in the biological opinion; or a new species
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`is listed or critical habitat designated that may be affected by the identified action.” 50 C.F.R.
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`§ 402.16.
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`B.
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`The Administrative Procedure Act
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`45.
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`The APA provides the standard of review for ESA citizen suit claims. Under the
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`APA, courts “shall . . . hold unlawful and set aside agency action, findings, and conclusions found
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`to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
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`U.S.C. § 706(2). The APA also allows courts to “compel agency action unlawfully withheld or
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`unreasonably delayed.” Id. § 706(1).
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`FACTUAL AND REGULATORY BACKGROUND
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`A.
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`EPA’s March 26, 2020 Non-Enforcement Policy
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`46.
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`On March 26, 2020, EPA issued a Memorandum entitled “COVID-19 Implications
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`for EPA’s Enforcement and Compliance Assurance Program,” which set forth a policy regarding
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`compliance and enforcement of environmental legal obligations of regulated entities during and
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`until the end of the COVID-19 pandemic. While the Non-Enforcement Policy does not specify an
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`end date, EPA has since issued a memorandum indicating it intends to rescind the policy on
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`August 31, 2020.
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`47.
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`This discretionary action allows regulated entities to forego certain routine
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`compliance obligations, including monitoring, integrity testing, sampling, lab analysis, training,
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`and reporting or certification where companies assert that such actions are not “reasonably
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`practicable” due to COVID-19. It requires the regulated entities to “act responsibly” in order to
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`minimize the effects of such noncompliance; to document the specific nature and dates of the
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`noncompliance; to identify how COVID-19 was the cause of such noncompliance; and to return
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`to compliance as soon as possible.
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`48.
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`The Non-Enforcement Policy applies to obligations under various environmental
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`laws, including the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Resource
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`Conservation and Recovery Act, and Emergency Planning and Community Right-to-Know Act.
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`These vitally important environmental laws create essential protections for listed species and
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`critical habitats.
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`49.
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`The terms and conditions of the Non-Enforcement Policy do not provide any
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`reference to the ESA or compliance with EPA’s Section 7 duties. Based on the information
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`available to the public, EPA has not, and does not intend to, undertake any ESA consultation on
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`the Non-Enforcement Policy. In response to FOIA requests, the Services have confirmed that
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`EPA did not discuss the policy with the wildlife agencies or initiate any form of Section 7
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`consultation.
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`50. While EPA has not included within its Non-Enforcement Policy any indication that
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`even emergency Section 7 consultation procedures will be implemented, other federal agen