Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`Case No. 1:20-cv-06572 (JSR)
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`WATERKEEPER ALLIANCE, INC., and
`RIVERKEEPER, INC.,
`
`
`Plaintiffs,
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`
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`
`
`
`
`
`
`
`v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY and ANDREW
`WHEELER, in his official capacity as
`Administrator of the United States
`Environmental Protection Agency,
`
`
`Defendants.
`
`
`
`
`
`MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR
`SUMMARY JUDGMENT
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`

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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 2 of 26
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS ................................................................................................................. i
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`INTRODUCTION .......................................................................................................................... 1
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`LEGAL FRAMEWORK ................................................................................................................ 3
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`I. ENDANGERED SPECIES ACT ......................................................................................... 3
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`II. ADMINISTRATIVE PROCEDURE ACT.......................................................................... 6
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`STATEMENT OF FACTS ............................................................................................................. 6
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`STANDARD OF REVIEW .......................................................................................................... 12
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`ARGUMENT ................................................................................................................................ 12
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`I. EPA FAILED TO INITIATE AND COMPLETE ESA SECTION 7
`CONSULTATION ON THE NON-ENFORCEMENT POLICY IN
`VIOLATION OF THE ESA ......................................................................................... 12
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`A.
`
`B.
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`EPA’s Policy is an Agency Action That “May Affect” Listed
`Species and Their Critical Habitats Requiring Section 7
`Consultation .............................................................................................. 13
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`EPA Failed to Even Follow the Service’s Emergency Consultation
`Process ...................................................................................................... 18
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`II. EPA’S FAILURE TO CONSULT CONSTITUTES AN AGENCY ACTION
`UNLAWFULLY WITHHELD IN VIOLATION OF THE APA ................................. 20
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`REMEDY ...................................................................................................................................... 21
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`CONCLUSION ............................................................................................................................. 21
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 3 of 26
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`TABLE OF AUTHORITIES
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`CASES
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`Aluminum Co. of Am. v. Administrator, Bonneville Power Admin., 175. F.3d 1156
`(9th Cir. 1999) ........................................................................................................ 6
`
`Bernstein/Glazer, LLC v. Babbitt, No. 99 Civ. 1195, 2000 WL 322778 (S.D.N.Y.
`March 28, 2000) ...............................................................................................6, 12
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`City Club of N.Y. v. U.S. Army Corps of Eng’rs, 246 F. Supp. 3d 860 (S.D.N.Y.
`2017) .....................................................................................................................12
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`Cottonwood Envtl. Law Ctr. v. United States Forest Serv., 789 F.3d 1075 (9th Cir.
`2015) .....................................................................................................................19
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`Forest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1999) .................................. 6
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`Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) .... 4, 14, 17
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`Nat’l Parks Conservation Ass’n v. Jewell, 62 F. Supp. 3d 7 (D.D.C. 2014) .......4, 16
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`National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ..19
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`NRDC v. Muszynski, 268 F.3d 91 (2d Cir. 2001) ...................................................... 6
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`NRDC, Inc. v. Fox, 93 F. Supp. 2d 531 (S.D.N.Y. 2000)....................................6, 21
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`Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) .............................................18
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`Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ..................................................2, 18
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`W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011) .............3, 17
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`STATUTES
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`16 U.S.C. § 1531 ........................................................................................................ 3
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`16 U.S.C. § 1536 ........................................................... 1, 3, 4, 12, 13, 14, 18, 20, 21
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`33 U.S.C. § 1311 ........................................................................................................ 8
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`5 U.S.C. § 706 ............................................................................................... 6, 12, 20
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`Fed. R. Civ. P. 56(a).................................................................................................12
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`ii
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`OTHER AUTHORITIES
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`40 C.F.R. § 131.12 ..................................................................................................... 9
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`40 C.F.R. § 131.2 ....................................................................................................... 8
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`50 C.F.R. § 402.02 .......................................................................................... 3, 4, 14
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`50 C.F.R. § 402.05 ..................................................................................................... 5
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`50 C.F.R. § 402.12 ..................................................................................................... 4
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`50 C.F.R. § 402.13 ..................................................................................................... 4
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`50 C.F.R. § 402.14 ............................................................................................ 2, 3, 4
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`50 C.F.R. § 402.16 ...................................................................................................15
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`RULES
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`51 Fed. Reg. 19,926 .............................................................................................4, 17
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`ENDANGERED SPECIES CONSULTATION HANDBOOK .............................................5, 18
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`iii
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 5 of 26
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`INTRODUCTION
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`
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`Plaintiffs challenge the U.S. Environmental Protection Agency’s (“EPA”) total failure to
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`comply with the Endangered Species Act (“ESA”) regarding EPA’s decision to suspend myriad
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`environmental legal obligations in light of the COVID-19 pandemic.1 On March 26, 2020, EPA
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`issued a memorandum entitled “COVID‐19 Implications for EPA’s Enforcement and
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`Compliance Assurance Program,” that established an unprecedented policy whereby EPA
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`voluntarily suspended the enforcement of environmental legal obligations under various
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`regulatory programs, such as the Clean Air Act and Clean Water Act, for all industries during the
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`pandemic (the “Policy”). Pls.’ Rule 56.1 Statement ¶ 1. As a result, many of the key pollution
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`reduction pillars elemental to federal environmental law – including monitoring, reporting, and
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`enforcement – were relaxed or arrested altogether, leading thousands of industrial polluters to
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`bypass their environmental compliance obligations. In easing regulatory programs that are
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`intended to limit pollution and prevent adverse environmental harm, the Policy certainly harms
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`endangered species by increasing the probability of exposure to harmful pollution and further
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`degrading habitats critical to their survival. See 16 U.S.C. § 1536(a)(2) (2018). EPA, however
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`failed entirely to consult at all with the U.S. Fish and Wildlife Service (“FWS”) and/or the
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`National Marine Fisheries Service (“NMFS”) (collectively the “Services”) on the Policy, in
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`violation of the ESA.
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`The duty to prevent jeopardy—actions that will reduce an ESA-protected species ability
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`to survive and recover in the wild—in consultation with the Services is one of the ESA’s
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`cornerstones for the conservation of imperiled species. In order to effectuate the substantive
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`1 The facts underlying this motion are set forth in Plaintiffs’ Rule 56.1 Statement of Undisputed
`Facts. (“Rule 56.1 Statement”).
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`1
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 6 of 26
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`protections of the ESA, agencies must follow a detailed consultation process for any agency
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`action that “may affect” protected species. 50 C.F.R. § 402.14 (2020). Here, however, though
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`there is no doubt that the EPA Policy meets the low “may affect” threshold for consultation, EPA
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`has refused to consult with the Services, and even failed to comply with the Services’ long-
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`established emergency consultation process. This wanton disregard for the process mandated by
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`Congress to address the adverse effects of EPA’s actions on imperiled species ignores not only
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`the plain language of the ESA and implementing regulations, but clear Congressional intent that
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`listed species be afforded the “highest of priorities.” Tenn. Valley Auth. v. Hill, 437 U.S. 153,
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`194 (1978).
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`While Plaintiffs of course recognize that certain steps may be appropriate to protect
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`people from harm during the pandemic, that does not give license to EPA to simply ignore its
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`vitally important ESA duties and disregard impacts to imperiled species and their critical habitats
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`by allowing unrestricted contamination of habitats on which such species depend. Suspension of
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`monitoring, reporting, and enforcement of environmental legal obligations under the Policy
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`creates an immediate and serious risk to imperiled wildlife. The EPA’s refusal to address these
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`impacts through ESA consultation sets a dangerous precedent for the abdication of core ESA
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`duties.
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`In sum, EPA’s failure to ensure through ESA Section 7 consultation that the Policy will
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`not jeopardize listed species and impair their critical habitats is arbitrary and capricious agency
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`action, in patent violation of Section 7 of the ESA. EPA’s failure to comply with the ESA
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`consultation requirements also constitutes agency action unlawfully withheld in violation of
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`Section 706(1) of the Administrative Procedure Act (“APA”). Accordingly, the Court should
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`grant Plaintiffs’ motion for summary judgment.
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`2
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 7 of 26
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`LEGAL FRAMEWORK
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`I.
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`ENDANGERED SPECIES ACT
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`
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`Congress enacted the ESA in 1973 in order to conserve endangered and threatened
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`species and the habitats they rely on. 16 U.S.C. § 1531(b) (2018). In enacting the ESA, Congress
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`found that “various species of fish, wildlife, and plants in the United States have been rendered
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`extinct as a consequence of economic growth and development untampered by adequate concern
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`and conservation.” 16 U.S.C. § 1531(a)(1). To stem the extinction crisis, Congress created ESA
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`Section 7, a vital safeguard that requires each federal agency, in consultation with FWS and/or
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`NMFS, to “insure that any action authorized, funded, or carried out by such agency . . . is not
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`likely to jeopardize the continued existence of any endangered species or threatened species or
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`result in the destruction or adverse modification” of designated critical habitat. Id. § 1536(a)(2).
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`The duty to prevent jeopardy is one of the ESA’s fundamental pillars for the conservation
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`of imperiled species. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir.
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`2011) (describing Section 7 consultation as the “heart of the ESA”). To comply with this duty,
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`Section 7(a)(2) and its implementing regulations set forth a detailed consultation process that
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`must be followed before agencies take actions that “may affect” listed species. Agency “action”
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`is defined broadly to include, inter alia, all “actions directly or indirectly causing modifications
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`to the land, water, or air,” 50 C.F.R. § 402.02 (2020), and the consultation obligation applies to
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`“all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by
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`Federal agencies” that “may affect” listed species or critical habitat in any manner. Id. § 402.14.
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`As set forth in the ESA Section 7 implementing regulations, Federal agencies must
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`review their actions at “the earliest possible time” to determine whether any action “may affect”
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`listed species or their critical habitat in the “action area.” Id. § 402.14(a). The “action area”
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`3
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`encompasses all areas that would be “affected directly or indirectly by the Federal action and not
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`merely the immediate area involved in the action.” Id. § 402.02. The term “may affect” is
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`broadly construed to include “[a]ny possible effect, whether beneficial, benign, adverse, or of an
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`undetermined character,” Id. § 402.14(a), and thus the consultation requirement is “easily
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`triggered.” Interagency Cooperation – Endangered Species Act of 1973, As Amended, 51 Fed.
`
`Reg. 19,926, 19,949-50 (June 3, 1986); see also Nat’l Parks Conservation Ass’n v. Jewell, 62 F.
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`Supp. 3d 7, 13 (D.D.C. 2014) (“The ‘may affect’ threshold for triggering the consultation duty
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`under section 7(a)(2) is low.”) (citing Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006,
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`1027 (9th Cir. 2012).
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`Pursuant to the Section 7 consultation process, if listed species may be present in the
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`action area, the agency must prepare a “biological assessment” that “evaluate[s] the potential
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`effects of the action” on listed species and their habitat. 50 C.F.R. §§ 402.02, 402.12 (2020). If
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`the action agency concludes in its biological assessment that an action is “not likely to adversely
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`affect” listed species, and the Services concur with that determination in writing, the action
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`agency typically relies on the biological assessment and concurrence (known as “informal
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`consultation”) to satisfy its ESA obligations. See id. §§ 402.13(a) (2020), 402.14(a)-(b).
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`However, if an action agency determines in its biological assessment that an action “may affect”
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`and is “likely to adversely affect” listed species or critical habitat, the agency must enter into a
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`more extensive consultation process with the Services, known as “formal consultation.” See 50
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`C.F.R. §§ 402.14(a)-(b), 402.12(k).
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`The ESA requires the Section 7 consultation process to be completed prior to the agency
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`undertaking any action that would adversely affect listed species or critical habitat. See 16 U.S.C.
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`§ 1536(d) (stating that pending completion of consultation, the applicant and Federal agency
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`“shall not make any irreversible or irretrievable commitment of resources with respect to the
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`agency action which has the effect of foreclosing the formulation or implementation of any
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`reasonable and prudent alternative measures” to prevent jeopardy).
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`
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`The Services have also provided an alternative consultation process in the case of
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`“emergencies.” In an emergency, such as “situations involving acts of God, disasters, casualties,
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`national defense or security emergencies, etc.,” 50 C.F.R. § 402.05(a) (2020), initial consultation
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`may be conducted informally through alternative procedures that are consistent with Section 7 of
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`the ESA (i.e. by calling or emailing the Services to discuss the emergency action and any prudent
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`mitigation), id., and then “[f]ormal consultation shall be initiated as soon as practicable after the
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`emergency is under control.” Id. § 402.05(b).
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`The Services have expounded on the emergency consultation process in their
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`ENDANGERED SPECIES CONSULTATION HANDBOOK 8-1 to 8-5 (1998), https://www.fws.gov
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`/endangered/esa-library/pdf/esa_section7_handbook.pdf (“Handbook”). The Handbook explains
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`that in the initial stages of emergency consultation, the Services “offer recommendations to
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`minimize the effects of the emergency response action on listed species or their critical habitat,”
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`and then a full, formal consultation is to take place after the emergency is under control. Id. The
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`emergency formal consultation “is treated like any other formal consultation.” Id. However,
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`post-emergency consultations require the agency to provide additional information, including
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`“an evaluation of the response to and the impacts of the emergency on affected species and their
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`habitats, including documentation of how the Services’ recommendations were implemented,
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`and the results of implementation in minimizing take.” Id.
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`II.
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`ADMINISTRATIVE PROCEDURE ACT
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`Since the ESA does not specify a standard of review, ESA citizen suit claims are
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`reviewed under the standard set forth in the APA, which provides that courts “shall . . . hold
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`unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with law” as well as agency
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`action adopted “without observance of procedure required by law.” 5 U.S.C. § 706(2) (2018); see
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`also Bernstein/Glazer, LLC v. Babbitt, No. 99 Civ. 1195, 2000 WL 322778, at *14–15 (S.D.N.Y.
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`March 28, 2000) (citing Forest Guardians v. Babbitt, 174 F.3d 1178, 1186 (10th Cir. 1999);
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`Aluminum Co. of Am. v. Administrator, Bonneville Power Admin., 175. F.3d 1156, 1160 (9th Cir.
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`1999)).
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`The APA also allows courts to “compel agency action unlawfully withheld or
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`unreasonably delayed.” 5 U.S.C. § 706(1). “An agency action . . . is ‘unlawfully withheld’ when
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`an agency fails to meet a clear deadline prescribed by Congress.” NRDC, Inc. v. Fox, 93 F. Supp.
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`2d 531, 543 (S.D.N.Y. 2000) aff’d in part, vacated in part on other grounds sub nom, NRDC v.
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`Muszynski, 268 F.3d 91 (2d Cir. 2001).
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`STATEMENT OF FACTS
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`
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`On March 26, 2020, EPA issued a memorandum entitled “COVID-19 Implications for
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`EPA’s Enforcement and Compliance Assurance Program.” SUSAN PARKER BODINE, U.S. EPA,
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`COVID-19 IMPLICATIONS FOR EPA’S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM 1
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`(2020), https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19
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`implications.pdf [hereinafter “Policy Memorandum”]; Pls.’ Rule 56.1 Statement ¶ 1. This
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`memorandum established EPA’s policy concerning compliance and enforcement of
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`environmental legal obligations for regulated parties during the COVID-19 pandemic. Policy
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`6
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`Memorandum at 1; Pls.’ Rule 56.1 Statement ¶ 1. The Policy was made retroactive to March 13,
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`2020. Policy Memorandum at 1; Pls.’ Rule 56.1 Statement ¶ 2.
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`The EPA Policy applies to permit obligations under various environmental laws,
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`including the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Resource Conservation
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`and Recovery Act, and Emergency Planning and Community Right-to-Know Act. Policy
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`Memorandum at 2-6; Pls.’ Rule 56.1 Statement ¶ 5. Pursuant to the Policy, EPA allowed
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`regulated entities to forego certain permit obligations under these statutes, including routine
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`compliance monitoring, integrity testing, sampling, lab analysis, training, and reporting or
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`certification, where permittees assert that such actions were not “reasonably practicable” due to
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`COVID-19. Policy Memorandum at 1-3; Pls.’ Rule 56.1 Statement ¶ 6. The EPA also asserted
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`that it would exercise enforcement discretion for noncompliance covered by the Policy, and not
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`seek penalties for permittees’ failure to fulfill legal obligations where permittees maintain that
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`such compliance was hindered by COVID-19. Policy Memorandum at 1; Pls.’ Rule 56.1
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`Statement ¶ 7.
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`Specifically, the EPA Policy recognized that the COVID-19 pandemic may affect
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`“reporting obligations and milestones set forth in settlements and consent decrees . . . [and] may
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`affect the ability of an operation to meet enforceable limitations on air emissions and water
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`discharges, requirements for the management of hazardous waste, or requirements to ensure and
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`provide safe drinking water.” Policy Memorandum at 2; Pls.’ Rule 56.1 Statement ¶ 8. The
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`Policy states that EPA “expects all regulated entities to continue to manage and operate their
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`facilities in a manner that is safe and that protects the public and the environment,” but it does
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`not require entities to do so or provide a means of ensuring safe operations. Policy Memorandum
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`at 4; Pls.’ Rule 56.1 Statement ¶ 9.
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`7
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 12 of 26
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`The Policy grants regulated entities discretion to determine whether COVID-19 has made
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`it impracticable to comply with applicable environmental legal obligations and permit
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`requirements. See Policy Memorandum at 3; Pls.’ Rule 56.1 Statement ¶ 11. Indeed, the Policy
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`contains no requirement that EPA ensure that compliance was indeed impracticable due to
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`COVID-19, though it does state that regulated entities must provide supporting documentation
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`upon request. Id. Furthermore, EPA did not require facilities to “catch-up” with missed
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`monitoring or reporting requirements where such requirements apply to intervals of less than
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`three months. Policy Memorandum at 3; Pls.’ Rule 56.1 Statement ¶ 10.
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`EPA’s suspension of environmental legal obligations, including monitoring and reporting
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`requirements, creates an immediate and serious risk to imperiled wildlife. Hamel Decl. ¶ 14; Pls.’
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`56.1 Statement ¶ 37; Waldman Decl. ¶¶ 11–14; Pls.’ 56.1 Statement ¶ 44–46. These regulatory
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`programs are intended to limit pollution and prevent adverse environmental harm, including to
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`protected wildlife species and the habitats they rely on. For example, suspension of Clean Water
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`Act (“CWA”) National Pollution Discharge Elimination System (“NPDES”) permit requirements
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`may affect listed species by allowing unmonitored and unreported (and hence unrestricted)
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`contamination of waterways listed species depend on, through increased levels of chemicals,
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`suspended sediment, or temperature variations. Hamel Decl. ¶ 14; Pls.’ 56.1 Statement ¶ 37;
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`Waldman Decl. ¶¶ 11–14; Pls.’ 56.1 Statement ¶ 45–46. NPDES permits are required to contain
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`limitations to reflect the application of available treatment technologies to ensure compliance
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`with water quality standards. See 33 U.S.C. § 1311(b) (2018) (effluent limitations); 40 C.F.R. §
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`131.2 (2020) (water quality standards). Water quality standards, in turn, are intended to protect
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`the condition of the water body to ensure that its designated uses remain available, which often
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`includes use as habitat for species. Id. (“water quality standards should, wherever attainable,
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`8
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 13 of 26
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`provide water quality for the protection and propagation of fish, shellfish, and wildlife . . . .”).
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`And NPDES permits contain an antidegradation policy to protect existing uses and maintain high
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`water quality, id. § 131.12 (2020), which is essential to ensuring the ongoing availability of
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`suitable habitat for many listed species. See id. § 131.12(a)(1) (“The antidegradation policy shall
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`. . . protect the existing uses . . . .”). Consequently, EPA’s suspension of NPDES monitoring and
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`reporting obligations poses distinct threats to listed species.
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`
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`EPA has made public a partial list2 of NPDES permits for which regulated entities sought
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`a waiver of compliance under the Non-Enforcement Policy. Ommen Decl. Ex. F; Pls.’ Rule 56.1
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`Statement ¶ 16. That list—which only provides NPDES waiver requests as of July 7, 2020—
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`contains 350 NPDES permits where a waiver was sought, purportedly due to COVID-19.
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`Ommen Decl. Ex. F, at 1; Pls.’ Rule 56.1 Statement ¶ 16. This list includes waivers requested
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`from wastewater treatment plants, organic chemicals manufacturing, and other commercial and
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`industrial activities, Ommen Decl. Ex. F, at 5–18; Pls.’ Rule 56.1 Statement ¶ 16, several of
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`which impact waterways that are relied upon by listed species, including endangered Atlantic
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`and shortnose sturgeon. Pls.’ Rule 56.1 Statement ¶ 17. For example, the list includes a water
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`pollution control facility in Massachusetts (Permit No. MA0101630), U.S. EPA, NPDES Permit
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`No. MA0101630 1 – City of Holyoke Water Pollution Control Facility (WPCF) (2009),
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`https://www3.epa.gov/region1/npdes/permits/2009/finalma0101630fs.pdf; Pls.’ Rule 56.1
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`Statement ¶ 17, that discharges into receiving waters that provide habitat for endangered Atlantic
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`and shortnose sturgeon in the Connecticut River, Surprise Catch: First Shortnose Sturgeon
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`Documented Above Dam in Connecticut River, NOAA FISHERIES (Oct. 25, 2017),
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`2 The list, Ommen Decl., Ex. F, Pls.’ Rule 56.1 Statement ¶ 14, is exclusive to the NPDES
`program and does not account for other polluters who sought waivers under other regulatory
`programs implicated by the Policy. Policy Memorandum at 2-6; Pls.’ Rule 56.1 Statement ¶ 5
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`https://www.fisheries.noaa.gov/feature-story/surprise-catch-first-shortnose-sturgeon-
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`documented-above-dam-connecticut-river; Pls.’ Rule 56.1 Statement ¶ 17, as well as an organic
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`chemicals manufacturer in Connecticut (Permit No. CTP000004), U.S. EPA, NPDES Permit No.
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`CTSP000004 2 – Bedoukian Research, Inc., Final Permit (2013), https://www3.epa.gov/region1/
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`npdes/permits/2013/finalctsp0000004permit.pdf; Pls.’ Rule 56.1 Statement ¶ 17, where the
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`permit specifically states that “[t]he subject site is located within an area identified as a habitat
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`for endangered, threatened, or special-concern species.” Id.
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`Furthermore, studies have confirmed that pollution levels have increased due to EPA’s
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`Policy. Several months after the Policy’s enactment, a study was released by the School of
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`Public Affairs at American University. CLAUDIA L. PERSICO, KATHRYN R. JOHNSON, THE
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`EFFECTS OF INCREASED POLLUTION ON COVID-19 CASES AND DEATHS (2020), https://www.
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`eenews.net/assets/2020/07/17/document_gw_02.pdf; Pls.’ 56.1 Statement ¶ 18. The study, titled
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`“The Effects of Increased Pollution on COVID-19 Cases and Deaths,” found, unsurprisingly,
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`that EPA’s rollback of environmental enforcement pursuant to the Policy resulted in increased
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`pollution, and confirmed that regulated entities respond in the absence of regulatory incentives
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`by increasing pollution output. Id.
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`However, the Policy makes no reference to impacts to listed species or compliance with
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`the ESA. Policy Memorandum at 3; Pls.’ 56.1 Statement ¶ 12. Moreover, EPA has stipulated that
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`the agency “has not consulted with or requested emergency consultation with the U.S. Fish and
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`Wildlife Service or the National Marine Fisheries Service under Section 7 of the Endangered
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`Species Act and its implementing regulations regarding the Temporary Enforcement Policy.
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`Ommen Decl. Ex. G; Pls.’ 56.1 Statement ¶ 13. On information and belief, EPA never contacted
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`the Services to discuss the potential impacts of the Policy on listed species, or measures to
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`Case 1:20-cv-06572-JSR Document 23 Filed 10/12/20 Page 15 of 26
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`mitigate such impacts. Id.; Ommen Decl. Exs. C, D, E; Pls.’ 56.1 Statement ¶ 14 (EPA and
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`Services had no responsive records to Plaintiffs’ FOIA requests).
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`On June 29, 2020, EPA released an addendum to the March 26 memorandum stating that
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`the Policy would expire on August 31, 2020, SUSAN PARKER BODINE, U.S. EPA, COVID-19
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`IMPLICATIONS FOR EPA’S ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM: ADDENDUM
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`ON TERMINATION 1 (2020), https://www.epa.gov/sites/production/files/2020-06/documents/
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`covid19addendumontermination.pdf; Pls.’ 56.1 Statement ¶ 4, however, EPA has not released
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`any further public statement confirming that it has rescinded the Policy, but EPA has updated its
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`webpage regarding the Policy. U.S. EPA, COVID-19 Enforcement and Compliance Resources,
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`https://www.epa.gov/enforcement/covid-19-enforcement-and-compliance-resources (last updated
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`Sept. 21, 2020); Pls.’ 56.1 Statement ¶ 4.
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`As required by the ESA’s citizen suit provision, through two letters, Plaintiffs put EPA
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`on formal notice that it was in violation of its mandatory duties under the ESA. Ommen Decl.
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`Exs. A, B; Pls.’ 56.1 Statement ¶ 15. Plaintiffs received no response to either letter. Pls.’ 56.1
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`Statement ¶ 15. Accordingly, Plaintiffs filed this lawsuit challenging the EPA’s failure to consult
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`on the Policy as violating the ESA’s nondiscretionary safeguards for avoiding the extinction of
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`endangered and threatened species. Plaintiffs—a coalition of non-profit conservation groups—
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`bring this lawsuit on behalf of their organizations and members, who are harmed by the EPA’s
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`failure to consult and whose injuries would be redressed if Plaintiffs’ suit is successful. See
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`generally Greenwald Decl., Hamel Decl., Dulong Decl., Waldman Decl., Estrin Decl.; Pls.’ 56.1
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`Statement ¶¶ 20-63.
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`STANDARD OF REVIEW
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`Summary judgment is appropriate when “the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
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`CIV. P. 56(a). Claims “brought under the ESA are reviewed according to the standards contained
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`in the APA. Under these APA standards, a reviewing court may set aside agency actions only if
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`they are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the
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`law.” Bernstein/Glazer, LLC, 2000 WL 322778, at *5; 5 U.S.C. § 706(2)(A). When a court
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`reviews agency action(s) under the APA, “the question presented is a legal one which the district
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`court can resolve . . . on a motion for summary judgment.” City Club of N.Y. v. U.S. Army Corps
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`of Eng’rs, 246 F. Supp. 3d 860, 864 (S.D.N.Y. 2017) (quotation omitted).
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`ARGUMENT
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`I.
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`EPA FAILED TO INITIATE AND COMPLETE ESA SECTION 7
`CONSULTATION ON THE NON-ENFORCEMENT POLICY IN
`VIOLATION OF THE ESA
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`Notwithstanding the unique challenges posed by the COVID-19 pandemic, EPA may not
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`simply ignore its vitally important ESA Section 7 duties and thereby disregard potential impacts
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`on imperiled species and their critical habitats. Indeed, even if EPA’s Policy was entirely
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`justified to respond to a public health emergency—a matter this Court need not resolve—that
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`could not excuse EPA’s complete disregard for ESA Section 7 because the ESA implementing
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`regulations establish special consultation procedures for genuine emergencies. In any case, EPA
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`has an affirmative duty pursuant to ESA Section 7(a)(2) to ensure that its actions are not likely to
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`jeopardize the continued existence of endangered and threatened species or result in the
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`destruction or adverse modification of such species’ critical habitat through consultation with the
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`Services. See 16 U.S.C. § 1536(a)(2) (2018). EPA failed to do so here.
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`There can be no doubt that EPA’s Policy triggers the agency’s Section 7 consultation
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`obligations; indeed, although the threshold for ESA consultation is very low, the Policy creates
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`an immediate and serious risk to imperiled wildlife. EPA effectively authorized regulated entities
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`to forego routine compliance monitoring and reporting requirements over the course of six
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`months under various environmental laws that protect listed species and their habitats along with
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`public health. While information on specific regulated entities that have not complied with
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`monitoring and reporting requirements due to COVID-19 is constrained by the limited data EPA
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`has made public on waivers under the Policy—thus reinforcing the need for ESA Section 7
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`consultation—the available data shows that several regulated entities have sought waivers for
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`compliance obligations for industrial and commercial operations where li