Case 1:20-cv-06572-JSR Document 32 Filed 11/20/20 Page 1 of 31
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`CENTER FOR BIOLOGICAL DIVERSITY, WATERKEEPER
`ALLIANCE, INC., and RIVERKEEPER, INC.,
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`Plaintiffs,
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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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`No. 20 Civ. 6572 (JSR)
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`MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR
`SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS’ CROSS-MOTION TO
`DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
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`LUCAS ISSACHAROFF
`Assistant United States Attorney
`– Of Counsel –
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`AUDREY STRAUSS
`Acting United States Attorney for the
`Southern District of New York
`86 Chambers Street, 3rd Floor
`New York, New York 10007
`Tel.: (212) 637-2737
`Fax: (212) 637-2702
`Email: lucas.issacharoff@usdoj.gov
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`Case 1:20-cv-06572-JSR Document 32 Filed 11/20/20 Page 2 of 31
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS ................................................................................................................. i
`TABLE OF AUTHORITIES .......................................................................................................... ii
`PRELIMINARY STATEMENT .................................................................................................... 1
`BACKGROUND ............................................................................................................................ 3
`I. The Temporary Enforcement Policy ................................................................................... 3
`A. The Nature and Scope of the Policy ............................................................................. 3
`B. NPDES “Waivers” ........................................................................................................ 6
`C. Termination of the Policy ............................................................................................. 7
`D. Prior Litigation .............................................................................................................. 7
`II. Statutory and Regulatory Background ................................................................................ 8
`ARGUMENT .................................................................................................................................. 9
`I. Plaintiffs Lack Standing ...................................................................................................... 9
`A. Legal Requirements for Standing ................................................................................. 9
`B. Plaintiffs Lack Injury in Fact ...................................................................................... 10
`C. Plaintiffs Cannot Show that Any Injury Is Fairly Traceable to the Alleged Violation or
`Likely to Be Redressed by a Favorable Ruling .......................................................... 14
`D. Plaintiffs Cannot Demonstrate Organizational Standing ............................................ 16
`II. Plaintiffs’ Complaint Is Mooted by the Termination of the Policy .................................. 18
`III. Plaintiffs Fail to State a Claim Under the ESA ................................................................. 20
`A. The Policy Is Not an “Action” Under the ESA........................................................... 21
`B. The Policy Does Not Have “Effects” Under the ESA’s Implementing Regulations .. 23
`IV. Plaintiffs’ APA Claim Is Precluded as a Matter of Law ................................................... 24
`V. Plaintiffs’ Proposed Remedies Are Premature ................................................................. 24
`CONCLUSION ............................................................................................................................. 26
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`Cases
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`TABLE OF AUTHORITIES
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`Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo.,
`458 F. Supp. 2d 160 (S.D.N.Y. 2006)....................................................................................... 10
`Am. Bar Ass’n v. F.T.C.,
`636 F.3d 641 (D.C. Cir. 2011) .................................................................................................. 19
`Am. Fuel & Petrochemical Mfrs. v. EPA,
`937 F.3d 559 (D.C. Cir 2019) ................................................................................................... 25
`Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc.,
`659 F.3d 13 (D.C. Cir. 2011) .................................................................................................... 17
`Bennett v. Spear,
`520 U.S. 154 (1997) .................................................................................................................. 24
`Bernstein/Glazer, LLC v. Babbitt,
`No. 99 Civ. 1195 JGK, 2000 WL 322778 (S.D.N.Y. Mar. 28, 2000) ...................................... 24
`Cal. Sportfishing Prot. All. v. FERC,
`472 F.3d 593 (9th Cir. 2006) .................................................................................................... 22
`Church of Scientology v. United States,
`506 U.S. 9 (1992) ................................................................................................................ 18, 23
`City of New York v. Pierce,
`609 F. Supp. 798 (S.D.N.Y. 1985) ........................................................................................... 20
`Clear Channel Outdoor, Inc. v. City of New York,
`594 F.3d 94 (2d Cir. 2010)........................................................................................................ 19
`County of Suffolk v. Sebelius,
`605 F.3d 135 (2d Cir. 2010)...................................................................................................... 18
`Ctr. for Biological Diversity v. EPA,
`861 F.3d 174 (D.C. Cir. 2017) ............................................................................................ 20, 25
`Ctr. for Biological Diversity v. Hamilton,
`385 F. Supp. 2d 1330 (N.D. Ga. 2005) ..................................................................................... 24
`Dep’t of Commerce v. U.S. House of Representatives,
`525 U.S. 316 (1999) .................................................................................................................. 10
`FEC v. Akins,
`524 U.S. 11 (1998) .................................................................................................................... 16
`Friends of Animals v. Jewell,
`828 F.3d 989 (D.C. Cir. 2016) ............................................................................................ 16, 17
`Friends of Santa Clara River v. U.S. Army Corps of Engineers,
`887 F.3d 906 (9th Cir. 2018) .................................................................................................... 24
`Hunt v. Wash. State Apple Adver. Comm’n,
`432 U.S. 333 (1977) .................................................................................................................. 10
`Karuk Tribe of Cal. v. U.S. Forest Serv.,
`681 F.3d 1006 (9th Cir. 2012) .................................................................................................. 22
`Lamar Advert. of Penn, LLC v. Town of Orchard Park,
`356 F.3d 365 (2d Cir. 2004)................................................................................................ 19, 20
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) ...................................................................................................... 10, 13, 15
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`Mhany Mgmt., Inc. v. County of Nassau,
`819 F.3d 581 (2d Cir. 2016)...................................................................................................... 19
`N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,
`684 F.3d 286 (2d Cir. 2012)...................................................................................................... 10
`Nat’l Ass’n of Home Builders v. Defs. of Wildlife,
`551 U.S. 644 (2007) .................................................................................................................. 18
`Nat’l Ass’n of Home Builders v. Salazar,
`827 F. Supp. 2d 1 (D.D.C. 2011) .............................................................................................. 18
`Nat’l Black Police Ass’n v. District of Columbia,
`108 F.3d 346 (D.C. Cir. 1997) .................................................................................................. 19
`Nat. Res. Def. Council v. Bodine,
`No. 20 Civ. 3058 (CM), 2020 WL 3838017 (S.D.N.Y. July 8, 2020)............................... passim
`Nat. Res. Def. Council v. Dep’t of Interior,
`410 F. Supp. 3d 582 (S.D.N.Y. 2019)....................................................................................... 16
`Nat. Res. Def. Council v. FHFA,
`815 F. Supp. 2d 630 (S.D.N.Y.2011)........................................................................................ 14
`O’Shea v. Littleton,
`414 U.S. 488 (1974) ............................................................................................................ 13, 23
`Powell v. McCormack,
`395 U.S. 486 (1969) .................................................................................................................. 18
`Salmon Spawning & Recovery All. v. Ahern,
`No. 05 Civ. 1878Z, 2010 WL 890047 (W.D. Wash. Mar. 9, 2010) ......................................... 22
`Sierra Club v. Babbitt,
`65 F.3d 1502 (9th Cir. 1995) .................................................................................................... 22
`Spokeo, Inc. v. Robins,
`136 S. Ct. 1540 (2016) .................................................................................................... 9, 10, 14
`Summers v. Earth Island Inst.,
`555 U.S. 488 (2009) ............................................................................................................ 11, 13
`Susan B. Anthony List v. Driehaus,
`573 U.S. 149 (2014) .................................................................................................................. 11
`Town of Babylon v. FHFA,
`699 F.3d 221 (2d Cir. 2012)...................................................................................................... 14
`Van Wie v. Pataki,
`267 F.3d 109 (2d Cir. 2001)...................................................................................................... 20
`W. Watersheds Project v. Matejko,
`468 F.3d 1099 (9th Cir. 2006) .................................................................................................. 22
`Warth v. Seldin,
`422 U.S. 490 (1975) .................................................................................................................... 9
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`Statutes
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`5 U.S.C. § 704 ............................................................................................................................... 24
`16 U.S.C. § 1536 ........................................................................................................... 8, 20, 21, 24
`16 U.S.C. § 1540 ........................................................................................................................... 24
`33 U.S.C. §§ 1251 to 1387 .............................................................................................................. 6
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`iii
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`Regulations
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`40 C.F.R. § 122.44 .......................................................................................................................... 6
`40 C.F.R. § 122.48 .......................................................................................................................... 6
`50 C.F.R. § 402.02 .............................................................................................................. 8, 21, 23
`50 C.F.R. § 402.05 .......................................................................................................................... 9
`50 C.F.R. § 402.14 .................................................................................................................. 23, 25
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`Other Authorities
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`13C Fed. Prac. & Proc. § 3533.7 .................................................................................................. 19
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`PRELIMINARY STATEMENT
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`The COVID-19 pandemic has caused widespread suffering and disruption in American life
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`and posed unprecedented challenges for both regulators and regulated entities, including by
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`creating worker shortages, impacting the availability of contractors to conduct sampling and
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`testing for facilities, and requiring regulated entities to adapt to stay-at-home orders and other
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`restrictions. On March 26, 2020, the Environmental Protection Agency (“EPA”) issued a
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`memorandum titled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance
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`Program” (the “Policy”), which set out certain factors and principles that EPA intended to use in
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`exercising its enforcement discretion for certain regulatory violations caused by the COVID-19
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`public health emergency. The Policy stated that “[i]n general, the EPA does not expect to seek
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`[civil] penalties” only for routine monitoring and reporting violations “where EPA agrees that
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`COVID-19 was the cause of the noncompliance” and other conditions are met; it did not include
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`a similar expectation for other types of violations, such as a failure to comply with pollutant limits
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`in permits. On June 29, 2020, in response to improving conditions nationwide and the increasing
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`ability of regulated entities to adapt their operations to COVID-19, EPA added a provision to the
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`Policy announcing that it would terminate on August 31, 2020. On August 31, 2020, the Policy
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`terminated as planned.
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`On August 18, 2020, notwithstanding the imminent termination of the Policy, Plaintiffs
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`filed this suit. Plaintiffs do not challenge the Policy itself—instead, they argue that the Endangered
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`Species Act requires EPA to consult with the Fish and Wildlife Service or the National Marine
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`Fisheries Service (together, the “Services”) to ensure that the Policy was not likely to jeopardize
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`the continued existence of threatened or endangered species or result in the destruction or adverse
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`modification of critical habitat. Plaintiffs’ complaint falls short on a number of grounds.
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`1
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`First, Plaintiffs lack standing. Plaintiffs lack injury in fact—Plaintiffs mischaracterize the
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`Policy, fail to provide evidence of any injury or harm to listed species or critical habitat, and rely
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`upon a misunderstanding of data released by EPA and a chain of unfounded speculation. Further,
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`even assuming Plaintiffs could show—which they cannot—that, while the Policy was in force,
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`increased pollution affected the species they declare interest in—Atlantic and shortnosed
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`sturgeon—Plaintiffs fail to show that such increase is attributable to the Policy, as opposed to
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`COVID-19 and its impacts on the regulated community. Additionally, Plaintiffs have not
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`demonstrated how these speculative harms would be redressed by a favorable decision. Nor can
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`Plaintiffs demonstrate an entitlement to information sufficient to support informational standing.
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`Second, Plaintiffs’ claims are mooted by the termination of the Policy. That termination
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`is neither a voluntary cessation in response to litigation nor an act capable of repetition yet evading
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`review. Rather, the Policy has independently terminated under circumstances such that declaratory
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`or injunctive relief would be no more than an advisory opinion, and Plaintiffs identify no concrete
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`relief that an ex post facto consultation with the Services could provide.
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`Plaintiffs’ claims also fail on the merits. The Endangered Species Act requires consultation
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`only for affirmative actions authorized, funded, or carried out by an agency. Courts have uniformly
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`held that consultation is not triggered by a purported failure to act. Plaintiffs’ claims rest upon
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`misconstruing the Policy as a wholesale modification of environmental enforcement regimes, a
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`view that another Court in this District has already rejected. Instead, the Policy is a statement of
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`EPA’s expectations regarding circumstances under which it would not act to seek civil penalties.
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`In any event, even if the Policy were an “action”, it would have no effects on listed species or
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`critical habitat that would trigger consultation with the Services. The Policy by its terms only
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`describes EPA’s intended exercise of enforcement discretion where, in light of the COVID-19
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`2
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`crisis, compliance with certain monitoring requirements is not reasonably practicable. Plaintiffs’
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`contention that there may be effects triggering consultation is based on a faulty reading of the
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`Policy as authorizing regulated entities not to comply with requirements even if COVID-19 is not
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`disrupting compliance (and further on the faulty reading that this alleged authorization would
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`extend beyond monitoring and reporting to substantive limits on pollution). Plaintiffs’
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`Administrative Procedure Act claims, meanwhile, are squarely precluded by the availability of a
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`direct cause of action under the Endangered Species Act.
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`Finally, to the extent the Court were to grant Plaintiffs’ motion for summary judgment, any
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`relief should be limited to remand to EPA for a determination as to whether the “action” may have
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`had any “effects” on listed species or critical habitat—an order requiring EPA to consult with the
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`Services would be premature.
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`I.
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`The Temporary Enforcement Policy
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`BACKGROUND
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`The Nature and Scope of the Policy
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`A.
`The COVID-19 pandemic has posed unprecedented challenges for regulators and regulated
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`entities alike. See generally Defendants’ Rule 56.1 Statement (“Def. 56.1”) ¶ 64 (citing
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`Declaration of Susan Parker Bodine (“Bodine Decl.”) ¶ 6). In response to this extraordinary
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`situation, on March 26, 2020, the Assistant Administrator of EPA’s Office of Enforcement and
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`Compliance Assurance (“OECA”), Susan Parker Bodine, issued the Policy, a memorandum
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`entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.”
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`Bodine Decl. Ex. 1. The Policy recognized that, due to worker shortages, social distancing, and
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`other disruptions from the COVID-19 pandemic, “there may be constraints on the ability of a
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`facility or laboratory to carry out certain activities required by our federal environmental permits,
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`regulations, and statutes.” Id. at 2. Accordingly, the Policy set forth guidance on how EPA
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`generally intended to exercise its enforcement discretion for certain violations caused by COVID-
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`19, noting several areas in which the Policy did not apply as well as strict conditions on the Policy’s
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`application in areas in which it did apply.
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`As relevant here, the Policy applied to “[r]outine compliance monitoring and reporting by
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`regulated entities,” id. at 3, providing that “[i]n general, the EPA does not expect to seek penalties
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`for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis,
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`training, and reporting or certification obligations” if “EPA agrees that COVID-19 was the cause
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`of the noncompliance” and “the entity provides supporting documentation to the EPA upon
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`request.” Id. Even this constrained statement of general policy was further limited: It did not
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`apply to obligations imposed by consent decrees or where there was “an acute risk or an imminent
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`threat to human health or the environment,” id. at 4, it did not authorize “exceedances of
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`enforceable limitations to air, discharges to water, or land disposal or other unauthorized releases,”
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`id. at 5, it did not relieve public water systems of their “heightened responsibility to protect public
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`health,” id. at 6, it did not “relieve[] any entity from the responsibility to prevent, respond to, or
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`report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and
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`other pollutants, as required by federal law,” id. at 7, and it did not apply to criminal violations, id.
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`The Policy also did not change the fact that any failure to conduct required monitoring or reporting
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`is a violation of the relevant requirement.
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`Moreover, the Policy was limited to circumstances in which regulated entities seeking
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`enforcement discretion had fulfilled several conditions. First, the Policy potentially applied only
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`where entities had made “every effort to comply with their environmental compliance obligations,”
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`but COVID-19 had made compliance “not reasonably practicable.” Id. at 2-3. Under such
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`circumstances, entities hoping for enforcement discretion should:
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`a. Act responsibly under the circumstances in order to minimize the effects and
`duration of any noncompliance caused by COVID-19;
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`b. Identify the specific nature and dates of the noncompliance;
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`c. Identify how COVID-19 was the cause of the noncompliance, and the decisions
`and actions taken in response, including best efforts to comply and steps taken to
`come into compliance at the earliest opportunity;
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`d. Return to compliance as soon as possible; and
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`e. Document the information, action, or condition specified in a. through d.
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`Id. at 3.
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`In other words, the Policy did not “allow[] regulated companies to stop monitoring and
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`reporting their compliance,” Plaintiffs’ Memorandum of Law (“Pl. Br.”) at 1, “allow[] regulated
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`entities to forego certain permit obligations under these statutes,” id. at 7, or “effectively
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`authorize[] regulated entities
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`to forego routine compliance monitoring and reporting
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`requirements,” id. at 13—rather, it indicated how EPA expected in general to exercise its
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`enforcement discretion with respect to the assessment of civil penalties where COVID-19 had
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`already rendered compliance with routine monitoring and reporting requirements impracticable.
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`Nor did the Policy “grant[] regulated entities discretion to determine whether COVID-19 has made
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`it impracticable to comply with applicable environmental legal obligations,” id. at 8—it was
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`conditioned on entities documenting “how COVID-19 was the cause of the noncompliance,” id.
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`at 3, and explicitly stated that EPA would exercise its discretion not to seek civil penalties only if
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`it “agrees” with that determination of cause. Policy at 3.
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`Plaintiffs’ assertions that the Policy caused noncompliance thus rests upon the unsupported
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`assumption that regulated entities that would otherwise comply with the law, and for which
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`compliance was reasonably practicable despite the COVID-19 public health emergency, used the
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`Policy as an excuse to stop following the law. Further, Plaintiffs make this assumption
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`Case 1:20-cv-06572-JSR Document 32 Filed 11/20/20 Page 11 of 31
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`notwithstanding that the Policy was merely a statement of EPA’s intent “[i]n general” not to pursue
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`civil penalties from parties where EPA agrees that the COVID-19 crisis made compliance with
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`routine monitoring and reporting requirements “not reasonably practicable,” if those entities made
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`“every effort to comply,” documented the cause of the noncompliance, and “return[ed] to
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`compliance as soon as possible.” Policy at 2-3.
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`NPDES “Waivers”
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`B.
`Plaintiffs build the bulk of their claim that the Policy has led to noncompliance and
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`increased pollution on a misinterpretation of certain data released by EPA related to the Clean
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`Water Act’s National Pollutant Discharge Elimination System (“NPDES”). See Def. 56.1 ¶ 16
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`(citing Declaration of Randolph L. Hill (“Hill Decl.”)). Under the Clean Water Act, 33 U.S.C. §§
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`1251 to 1387, NPDES permitted facilities must monitor and report their pollutant discharges
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`pursuant to 40 C.F.R. §§ 122.44 and 122.48. Hill Decl. ¶ 4. When NPDES permittees do not have
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`discharge data, they must use a No Data Indicator (“NODI”) and indicate the reason for their lack
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`of data using NODI codes provided by EPA. Id. ¶¶ 6-7. On March 31, 2020, EPA issued the
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`“Temporary Advisory for National Pollutant Discharge Elimination System (NPDES) Reporting
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`in Response to COVID-19 Pandemic,” which provided reporting guidance to NPDES permittees
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`relating to the Policy and instructed NPDES permittees to use NODI code “Z” if data was missing
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`because of the COVID-19 pandemic as provided in the Policy. Id. ¶ 8.
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`Importantly, use of a specific NODI code does not indicate that EPA has “waived”
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`enforcement, or has accepted the NODI code as appropriate or adequate. Instead, use of the NODI
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`code “Z” indicates that the permittee believes that the Policy applies to its COVID-19-caused
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`routine monitoring or sampling noncompliance. Id. ¶ 10. EPA can then follow up if necessary to
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`determine whether the Policy’s criteria for enforcement discretion are met. Id. The NODI code
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`“Z” also does not indicate a discharge in exceedance of permit limitations, authorize a discharge
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`in exceedance of such limitations, suspend any permit requirements, or indicate that EPA has in
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`any way granted a waiver of compliance or determined not to seek civil enforcement penalties. Id.
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`¶¶ 11-16. Accordingly, the list of facilities attached as Exhibit F to the Ommen Declaration using
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`NODI code “Z” is not a list of entities that requested a waiver of compliance with NPDES permit
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`requirements, not a list of facilities that obtained a waiver of compliance with NPDES permit
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`requirements from EPA, and not a list of facilities that had exceeded applicable NPDES discharge
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`limits. Id. ¶ 19; see also Bodine Decl. ¶ 21. Nor is it a list of facilities that would have reported
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`data (let alone complied with substantive effluent limits) but for the Policy.
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`Termination of the Policy
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`C.
`On June 29, 2020, in response to changing circumstances and regulated entities’ increasing
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`ability to adapt to COVID-19 conditions, OECA issued a “Termination Addendum” to the Policy,
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`which provided that the Policy would terminate in its entirety on August 31, 2020. Def. 56.1 ¶ 69
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`(citing Bodine Decl. ¶ 19, Ex. 3). The Termination Addendum further stated, “This means that
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`the EPA will not base any exercise of enforcement discretion on this temporary policy for any
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`noncompliance that occurs after August 31, 2020.” Bodine Decl. Ex. 3 (“Termination
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`Addendum”) at 1. Pursuant to the Termination Addendum, the Policy did in fact terminate on
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`August 31, 2020. Def. 56.1 ¶ 70. EPA has no plans to reinstate or reissue the Policy. Id. ¶ 71
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`(citing Bodine Decl. ¶ 21).
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`Prior Litigation
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`D.
`The Policy, prior to its termination, was the subject of two lawsuits in this District. In the
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`first, Nat. Res. Def. Council v. Bodine, No. 20 CIV. 3058 (CM), a coalition of fifteen environmental
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`groups submitted a petition for an emergency rulemaking requiring public reporting for certain
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`COVID-19-caused noncompliance, and brought suit claiming that EPA had unreasonably delayed
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`in failing to address the petition. The Court concluded that the plaintiffs lacked standing to pursue
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`the unreasonable delay claim (although it was “perfectly obvious” that EPA had not unreasonably
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`delayed as of the time the suit was filed), because the plaintiffs failed to demonstrate either
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`organizational or associational standing. Nat. Res. Def. Council v. Bodine, No. 20 Civ. 3058 (CM),
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`2020 WL 3838017, at *1 (S.D.N.Y. July 8, 2020). The Court concluded that the plaintiffs’ “claim
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`to injury in fact is built on multiple layers of speculation” and “does not comport with Article III’s
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`requirement that an injury be concrete and particularized and actual or imminent, not conjectural
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`or hypothetical,” id. at *8-11 (internal quotation marks omitted), and that “Plaintiffs have not
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`established that their alleged injury is fairly traceable to EPA’s purported ‘unreasonable delay’ in
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`responding to the Petition, rather than the unique circumstances presented by the COVID-19
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`pandemic itself,” id. at *12.
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`In what the NRDC Court referred to as “the real litigation—over the legality of the Policy
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`itself,” id. at 2—nine states’ Attorneys General challenged the Policy on the merits and sought a
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`preliminary injunction. New York v. U.S. Envt’l Prot. Agency, 20 Civ. 3714 (CM). Once the
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`Termination Addendum was announced, however, the states agreed to stay the litigation, and
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`voluntarily dismissed it upon the Policy’s termination.
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`II.
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`Statutory and Regulatory Background
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`Section 7(a)(2) of the Endangered Species Act (“ESA”), directs each federal agency to
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`insure, in consultation with the Fish and Wildlife Service or the National Marine Fisheries Service
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`(the “Services”), that “any action authorized, funded, or carried out by such agency . . . is not likely
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`to jeopardize the continued existence of” a listed species, or destroy or adversely modify its
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`designated critical habitat. 16 U.S.C. § 1536(a)(2). The ESA’s implementing regulations define
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`an “action” as “all activities or programs of any kind authorized, funded, or carried out, in whole
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`or in part, by Federal agencies in the United States or upon the high seas.” 50 C.F.R. § 402.02. If
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`the agency proposing action determines that its action “may affect” listed species or designated
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`Case 1:20-cv-06572-JSR Document 32 Filed 11/20/20 Page 14 of 31
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`critical habitat, it must pursue formal or informal consultation. Id. §§ 402.14(a), 402.13(a). If
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`formal consultation is required, the Service prepares a biological opinion on whether the proposed
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`action is likely to jeopardize the continued existence of any listed species or destroy or adversely
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`modify designated critical habitat. Id. § 402.14(g)(4), (h).
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`In cases of “emergency circumstances,” the ESA regulations allow for a modified
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`procedure by which initial consultation takes place “informally through alternative procedures,”
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`with formal consultation “initiated as soon as practicable after the emergency is under control.”
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`50 C.F.R. § 402.05.
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`Because the Policy was not an “action” that “may affect” listed species or critical habitat
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`within the meaning of the ESA, EPA was not required to and did not undertake either formal or
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`informal consultation, or emergency consultation, with respect to the Policy.
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`I.
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`Plaintiffs Lack Standing
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`ARGUMENT
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`Legal Requirements for Standing
`A.
`Standing requires that a plaintiff have “a personal stake in the outcome of the controversy
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`[so] as to warrant his invocation of federal-court jurisdiction.” Warth v. Seldin, 422 U.S. 490, 498
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`(1975) (internal quotation marks omitted). At its “irreducible constitutional minimum,” this
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`requires a plaintiff to demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly
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`traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
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`favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
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`An organizational plaintiff can establish standing on behalf of itself or its members. First,
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`an organizational plaintiff may establish “associational standing” based on injury to its members
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`by showing that “(a) its members would otherwise have standing to sue in their own right; (b) the
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`interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
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`9
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`

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`Case 1:20-cv-06572-JSR Document 32 Filed 11/20/20 Page 15 of 31
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`asserted nor the relief requested requires the participation of individual members in the lawsuit.”
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`Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Alternatively, to show
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`standing on its own behalf (often referred to as “organizational standing”), “the organization itself
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`must meet the same standing test that applies to individuals.” N.Y. Civil Liberties Union v.