Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 1 of 20
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF NEW YORK
`___________________________________ x
`
`
`CENTER FOR R OLOGTCAL UIVERSTTY,
`
`et al
`
`
`
`,
`
`
`
`Plaintiffs,
`
`—v—
`
`20~cv—6572 (JSR)
`
`OPINION
`
`
`UNITED STATES ENVIRONMENTAL
`
`PROTECTION AGENCY, et al.,
`
`
`
`Defendants.
`
`___________________________________ x
`
`
`JED S. RAKOFF, U.S.D.J.
`
`
`This suit challenges the failure of
`
`
`the U.S. Environmental
`
`
`Protection Agency (“EPA”)
`
`to consult with the Fish and Wildlife
`
`Service (“FWS”) and the National Marine Fisheries Service (“NMFS”)
`
`in
`
`connection with
`
`a
`
`temporary
`
`nonenforcement policy
`
`(the
`
`“Policy”)
`
`the EPA. published.
`
`in. March. 2020
`
`in response to the
`
`pandemic. The Endangered Species Act
`
`(“ESA”) and its implementing
`
`‘regulations require that an agency consult with the FWS and/or the
`
`NMFS before taking any action that may affect
`
`endangered or
`
`threatened species.
`
`In an emergency,
`
`the agency may informally
`
`notify the NMFS and/or the FWS,
`
`take the action,
`
`and engage in
`
`
`formal consultation with the FWS and/or the NMFS thereafter.
`
`In March 2020,
`
`the EPA published the Policy, which announced
`
`that it “d[id] not expect
`
`to seek penalties for violations of”
`
`certain
`
`routine
`
`requirements,
`
`including
`
`sampling,
`
`testing,
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 2 of 20
`
`training, and reporting, if the noncompliance was caused by COVID—
`
`19.1
`
`
`The EPA did not consult with the FWS or the NMFS regarding
`
`the
`
`Policy,
`
`including
`
`under
`
`the
`
`provision
`
`for
`
`emergency
`
`consultation.
`
`Plaintiff non—profit organizations
`
`sued.
`
`The
`
`Policy has now terminated, but plaintiffs seek to compel
`
`
`the EPA
`
`to engage in post—hoc consultation with the FWS and the NMFS.
`
`Now before the Court are the parties’
`
`cross~motions
`
`for
`
`summary'
`
`judgment.
`
`One of
`
`the principal. disputed.
`
`issues,
`
`and
`
`ultimately the dispositive issue,
`
`is standing.
`
`The EPA does not
`
`deny that if excess pollutants were to enter the habitat of
`
`the
`
`Atlantic and shortnose sturgeons —~ endangered species studied by
`
`
`
`members of the plaintiff organizations —— then those members would
`
`
`
`suffer an injury sufficient
`
`
`
`:o confer standing.
`
`However,
`
`the
`
`defendants maintain that
`
`
`
`the plaintiffs offer no evidence from
`
`which a jury could reasonably infer that the Policy caused a real
`
`risk of excess discharge into sturgeon habitat.
`
`The Court agrees.
`
`Therefore, by bottom—line order, ECF No. 40,
`
`the Court granted the
`
`defendants’ motion and denied the plaintiffs’ motion.
`
`
`
`
`for EPA’s
`implications
`COVlD—l9
`EPA,
`1 Susan Parker Bodine,
`26, 2020),
`En_orcement
`and Compliance Assurance Program.
`(Mar.
`'h
`
`https://www.epa.gov/sites/production/files/2020—OB/documents/
`oecamemooncovidl9implications.pdf.
`2
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 3 of 20
`
`
`BACKGROUND
`
`A.
`
`The Endangered Species Act
`
`
`Congress enacted the 38A in 1973 to preserve endangered and
`
`threatened species.
`
`
`ESA Section 7 provides,
`
`in pertinent part:
`
`in consultation with and with
`Each Federal agency shall,
`
`the assistance 0:: the Secretary [of the Interior, or the
`Secretary of Commerce with respect
`to certa:n marine
`
`life],
`insure that any action authorized,
`funded, or
`carr:_ed. out by such agency .
`.
`.
`is not
`likely’
`to
`jeopardize the continued. existence of ary endangered
`
`spec-es
`or
`threatened
`species
`or
`result
`in
`the
`destruction or
`adverse modification
`of
`[critical]
`
`
`habitat
`.
`.
`.
`.
`In fulfilling the requirements o_ this
`paragraph each agency shall use the best scientific and
`commercial data available.
`
`
`
`
`l6 U.S.C. § 1536(a)(2). An implementing regulation provides, “Each
`
`Federal agency shall review its actions at
`
`the earliest possible
`
`time to determine whether any action may affect listed species or
`
`critical habitat.
`
`If
`
`such a determination.
`
`is made,
`
`formal
`
`consultation is required,
`
`[with exceptions not relevant here].”
`
`50 C.F.R.
`
`§ 402.l4(a).
`
`of any kind authorized,
`
`
`
`“Action means all activities or programs
`
`funded, or carried out,
`
`in whole or
`
`in
`
`part, by Federal agencies .
`
`.
`
`.
`
`,” including,
`
`inter alia, “actions
`
`directly or
`
`indirectly causing modifications to the land, water,
`
`or air.” 50 C.F.R.
`
`§ 402.02.
`
`When formal consultation is required,
`
`the pertinent agency
`
`must
`
`send the NMFS
`
`and/or
`
`the
`
`
`FWS certain information,
`
`
`id.
`
`402.l4(c),
`
`and “[f]ormal consultation concludes within 90 days
`
`after its initiation unless extended” by mutual agreement between
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 4 of 20
`
`the agency and,
`
`the NMFS
`
`and/or‘
`
`the FWS,
`
`id. 402.14(d).
`
`The
`
`regulations further provide that
`
`to
`need
`the
`circumstances mandate
`emergency
`where
`in an expedited. manner,
`consultation. may be
`consult
`
`conducted informally through alternative procedures that
`
`[NMFS or
`FWS] determines
`to be consistent with the
`
`
`requirements of sections 7(a)—(d) of
`the [ESA].
`This
`
`provision applies to situations involving acts of God,
`disasters,
`casualties, national deferse or
`security
`emergencies,
`etc.
`Formal
`consultation
`shall
`be
`initiated as soon as practicable after the emergency is
`under control.
`
`
`
`Id. 402.05 (lettering omitted).
`
`
`
`B. The Temporary Nonenforcement Policy
`
`On March 26,
`
`2020,
`
`the EPA issued a nemorandum entitled
`
`“COVID—l9
`
`Implications
`
`for EPA’s Enforcement
`
`and Compliance
`
`
`
`Assurance Program.”
`
`SUF T l.2
`
`
`The Policy provides that the EPA
`
`generally “does not expect
`
`to seek penalties for violations of
`
`routine
`
`compliance monitoring,
`
`integrity testing,
`
`sampling,
`
`laboratory analysis,
`
`training,
`
`and reporting or certification
`
`
`obligations in situations where the EPA agrees that COVlD—l9 was
`
`the cause of the noncompliance and the entity provides supporting
`
`
`documentation to the EPA upon request.” Policy 3. Despite this
`
`
`announcement of the EPA’s general intention,
`
`the EPA continued to
`
`have enforcement discretion.
`
`SUE‘
`
`T
`
`67.
`
`The Policy further
`
`
`
`2 “SUF” refers to the parties’ Rule 56.1 Statements of Undisputed
`Facts, which are numbered sequentially.
`SUE ll 1—63
`refer to
`Defendants’ Response to Plaintiffs’ Rule 56.1 Statement, ECF No.
`
`33.
`SUF if 64 et seq. refer to Plaintiffs’ Response to Defendants’
`Rule 56.1 Statement, ECF No. 38.
`
`
`
`4
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 5 of 20
`
`provides that, “[i]n general, absent exigent circumstances,
`
`the
`
`EPA does not plan to ask facilities :0 ‘catch—up’ with missed
`
`monitoring or reporting if the underlying requirement applies to
`
`
`
`intervals of less than three months.”
`
`Id.
`
`The Policy contains exceptions;
`
`for example, it states that
`
`“the EPA has heightened expectations for public water systems. The
`
`
`EPA expects operators of such systems to continue normal operations
`
`and maintenance as well as required sampling to ensure the safety
`
`of our drinking water supplies.” Ed; 6.
`
`The Policy declines to
`
`“relieve[] any entity from the responsibility to prevent,
`
`respond
`
`to, or report accidental releases of oil, hazardous substances,
`
`hazardous chemicals, hazardous waste,
`
`and other pollutants,
`
`as
`
`requiredt by
`
`federal
`
`law,”
`
`and disclaims
`
`any “willingness
`
`to
`
`exercise enforcement discretion in the wake of such a release.”
`
`lg; at 7.
`
`Permittees across the country submit certain reporting data
`
`
`to the EPA using the National Pollutant Discharge Elimination
`
`System (“NPDES”).
`
`On March 31, 2020,
`
`the EPA issued a memorandum
`
`advising permittees to use the code “Z” in the kPDES system i;
`
`data was missing‘ or
`
`
`incomplete because of COVZD—l9
`
`and “the
`
`
`
`permittee believes the
`
`.
`
`.
`
`. Policy applies to their routine
`
`monitoring or
`
`sampling noncompliance.”
`
`David A. Hindin,
`
`EPA,
`
`
`
`Temporary Advisory for National Pollutant Discharge Elimination
`
`
`
`System (NPDES) Reporting in Response to COVID—l9 Pandemic 2
`5
`
`(War.
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 6 of 20
`
`31, 2020)
`
`(the “NPDES Advisory”). Recognizing that some permittees
`
`would be unable to promptly update their internal systems to add
`
`the code “Z” as an option,
`
`
`the NPDES Advisory suggested,
`
`in the
`
`alternative,
`
`
`the use of “K”
`
`(natural disaster) or another rarely
`
`used code.
`
`Id.
`
`
`The NPDES Advisory explained that if an entity
`
`
`
`submitted missing or
`
`incomplete data with code “Z,” then a non—
`
`receipt violation would. not be automatically generated.
`
`Id;
`
`However,
`
`
`
`
`“EPA and authorized NPDES Programs may use the COV"7—l9
`
`code if follow—up is needed to determine if the criteria set forth
`
`
`enforcement discretion are met.”
`. Policy for use 0'
`
`in the .
`
`.
`
`ld.
`
`It is undisputed that as of July 7, 2020, permittees had used
`
`the “Z” code to explain missing or
`
`incomplete data on more than
`
`350 occasions.
`
`
`Ommen Decl. Ex. F, ECF No. 25—6.
`
`
`
`
`
`The EPA did not consult with the FWS or the NMFS under Section
`
`
`
`
`7 of the BSA and its implementing regulations regarding the Policy,
`
`
`not even using the procedures for emergency consultation.
`
`On June
`
`29, 2020,
`
`the EPA issued an addendum to the Policy, providing that
`
`it would terminate on August 31, 2020, which it did.
`
`SUF Tl 69—70.
`
`C.
`
`Plaintiffs’ and Their Members' Irterests in the Action
`
`Plaintiffs
`
`
`are
`
`
`
`IBiological Uiversity,
`the Center
`for
`
`
`
`
`Waterkeeper Alliance, Inc., and Riverkeeper,
`
`Inc.
`
`
`The Center for
`
`Biological Diversity is a nonprofit organization with more than
`
`81,843 members “dedicated to the preservation, protection,
`
`and
`
`restoration of biodiversity, native species,
`6
`
`ecosystems,
`
`and
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 7 of 20
`
`public lands through science, policy, education, and environmental
`
`law.”
`
`SUF ll 2l—22. Waterkeeper Alliance is a not—for—profit
`
`umbrella
`
`corporation,
`
`connecting more
`
`than
`
`350 member
`
`and
`
`affiliate organizations, which cumulatively have tens of thousands
`
`of members in the U.S.
`
`SUF l 51. Waterkeeper Alliance seeks to
`
`protect water quality.
`
`SUF l 52.
`
`Riverkeeper
`
`is a 501(c)(3)
`
`
`not—for—profit environmental organization with approximately 3,807
`
`members.
`
`SUF l 59.
`
`
`
`Its mission includes safeguarding the Hudson
`
`River and its tribu:aries.
`
`SUF l 60.
`
`
`
`
`Martin J. Hamel, Ph.D., a member of the Center for Biological
`
`
`Diversity, is a fish biologist focusing on endangered fish species,
`
`such as Atlantic and shortnose sturgeon.
`
`SUF ll 33-35.
`
`He has
`
`spent,
`
`and plans to continue to spend,
`
`a considerable amount of
`
`time studying and writing about sturgeon.
`
`SUF i 39.
`
`John R.
`
`
`Waldman, Ph.D., a member of Riverkeeper, is an aquatic conservation
`
`biologist,
`
`focusing on endangered fish species,
`
`
`such as Atlantic
`
`and shortnose sturgeon.
`
`SUF ll 41-43. Sturgeon are vulnerable to
`
`harm from pollution from industrial and wastewater treatment plant
`
`
`discharge.
`
`SUF l 45.3
`
`The loss of sturgeon would harm Hamel and
`
`Waldman’s abilities to research,
`
`study, and/or enjoy the fish.
`
`SUF ll 38, 47.
`
`
`
`3 Some aspects of SUF fl 45 are disputed, but this fact is not.
`7
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 8 of 20
`
`
`
`D. Prior Litigation
`
`The Policy was
`
`the subject of
`
`two prior
`
`lawsuits in this
`
`Circuit.
`
`
`In New York v. EPA, No. 20—cv—37l4 (CM)
`
`(S.D.N.Y. 2020),
`
`nine states sought
`
`a preliminary injunction against
`
`the Policy.
`
`
`The action was stayed once the EPA announced that the Policy would
`
`terminate
`
`on August
`
`31,
`
`and
`
`thereafter
`
`it was voluntarily
`
`dismissed.
`
`
`
`In Natural Resources Defense Council v. Bodine, No. 20—cv—
`
`3058
`
`(CM),
`
`471
`
`F.
`
`Supp.
`
`2d
`
`524
`
`(S.D.N.Y.
`
`July 8,
`
`2020),
`
`
`environmental groups challenged the speed of EPA's response to an
`
`emergency rulemaking petition the organizations had filed.
`
`The
`
`environmental groups had “petitioned EPA to publish a rule, on an
`
`emergency basis and effective immediately,
`
`that would require any
`
`entity that
`
`suspends monitoring'
`
`and reporting because of
`
`the
`
`
`COVID—l9 pandemic to provide written notice to EPA, which EPA would
`
`
`then make available to the public.”
`
`Id. at 527.
`
`Fifteen days
`
`
`after filing the emergency rulemaking petition, plaintiffs sued,
`
`claiming that the agency had failed to respond to their petition
`
`“within.
`
`a
`
`reasonable time,” as
`
`required by time Administrative
`
`Procedure Act,
`
`5 U.S.C.
`
`§ 555(b).
`
`On
`
`cross—motions
`
`for
`
`summary
`
`judgment,
`
`then—Chief
`
`Judge
`
`
`
`McMahon dismissed the case for lack of standing.
`
`She held that,
`
`
`while the plaintiff organizations claimed a right to information,
`
`“[n]o rule requiring EPA.
`
`to report
`8
`
`the information of which
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 9 of 20
`
`Plaintiff are being deprived is presently on the books.”
`
`Id. at
`
`535.
`
`Although
`
`
`
`
`the plaintiffs
`also claimed
`
`injury through
`
`environmental harms,
`
`the Court
`
`found that “Plaintiffs’ claim to
`
`[any
`
`such]
`
`injury in fact
`
`is built
`
`on multiple
`
`layers
`
`of
`
`speculation” without “a scintilla of evidence.”
`
`Id. at 537.
`
`To prove
`
`standing,
`
`
`
`the plaintiffs had offered. affidavits
`
`describing their members’
`
`fears that
`
`the Policy would lead to
`
`
`
`pollution increases, combined with published articles showing,
`
`in
`
`general, “that
`
`
`the failure to report and monitor correlates with
`
`increased pollution.”
`
`Id.
`
`However, plaintiffs did not provide
`
`evidence
`
`substantiating their
`
`fears
`
`by
`
`linking that general
`
`principle to the Policy.
`
`“Since
`
`[Plaintiffs]
`
`admit
`
`that
`
`the
`
`Plaintiff
`
`organizations
`
`themselves
`
`engage
`
`in monitoring
`
`activities,
`
`their failure to offer more than speculation about
`
`what might happen dooms their cause.”
`
`Id.
`
`
`The Chief Judge reasoned:
`
`
`
`
`
`To credit Plaintiffs’ argumert would require not only
`accepting that the Policy will cause regulated entities
`to cease monitoring and reporting temporarily because
`their employees are locked down due to COVID and unable
`to come to work —- a proposition I have no difficalty
`
`
`embracing —— but also that the EPA's policy of selec:ive
`nonenforcement
`(bounded by certain reqiirements imposed
`on the regulated entities) will
`in turn cause those
`entities
`to increase pollution and create chemical
`safety hazards —— this despite the fac: that the Policy
`does not change any substantive requirements,
`let alone
`substantive emissions or discharge limits, or alter the
`ability of EPA, states, and citizens to sue where there
`are such environmental
`law violations.
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 10 of 20
`
`Id. at 539—40.
`
`
`
`
`Plaintiffs filed the instant suit on August 18, 2020.
`
`The
`
`parties agreed to forgo discovery and proceed directly to summary
`
`judgment.4
`
`
`
`LEGAL STANDARD
`
`The Court “shall grant
`
`summary judgment if the movant shows
`
`
`
`that there is no genuine dispute as to any material fact and the
`
`movant is entitled to judgment as a matter of law.”
`
`Fed. R. Civ.
`
`P. 56(a).
`
`The Court
`
`is required to resolve all ambiguities and
`
`draw all
`
`factual
`
`inferences in favor of
`
`the non—moving party.
`
`Rattner v. Netburn, 940 F.2d 704, 709 (9d Cir. 1991).
`
`
`Article III of
`
`the Constitution extends
`
`
`federal courts’
`
`jurisdiction only to cases and controversies, and the Supreme Court
`
`has interpreted this to mean that federal jurisdiction exists only
`
`when the plaintiff has standing —— that is, “a personal stake in
`
`
`the outcome of the controversy.” Warth v. Seldin, 422 U.S. 490,
`
`498 (1975)
`
`(internal quotation marks omitted).
`
`
`
`To show standing, a plaintiff must demonstrate (1) “an injury
`
`in fact,
`
`(2)
`
`that is fairly traceable to the challenged conduct of
`
`the defendant,
`
`and
`
`(3)
`
`that
`
`is
`
`likely to be
`
`redressed. by a
`
`
`
`
`4 For this reason, although plaintiffs argue under Federal Rule of
`Civil Procedure 56(d)
`that
`they should. be permitted.
`to take
`additional discovery,
`that argument lacks merit. Plaintiffs chose
`to proceed directly to summary judgment and cannot now be heard to
`complain about insufficient discovery.
`10
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 11 of 20
`
`favorable judicial decision.”
`
`
`Spokeo,
`Inc. V. Robins, 136 S. Ct.
`
`1540,
`
`1547
`
`(2016).
`
`An organization may demonstrate standing in
`
`the same way as a natural person (“organizational standing”) by
`
`demonstrating‘
`
`these same
`
`three requirements of
`
`
`injury—in—fact,
`
`traceability, and redressability.
`
`N.Y. Civil Liberties Union v.
`
`
`
`
`
`
`
` (2d Cir.294286,F.3d684N.Y.C. Transit Auth., 2012).
`
`
`
`
`
`
`
`Alternatively, an organization may demonstrate standing on behalf
`
`of
`
`“(a)
`
`its members
`
`(“associational
`
`standing”)
`
`by
`
`demonstrating
`
`its members would otherwise have standing to sue in their own
`
`
`
`right;
`
`(b)
`
`the interests it seeks to protect are germane to the
`
`organization’s purpose; and (c) neither the claim asserted nor the
`
`relief requested requires the participation of individual members
`
`in the lawsuit.”
`
`Hunt v. Wash. State Apple Adver. Comm’n,
`
`432
`
`U.S. 333, 343
`
`1977).
`
`
`
`A plaintiff’s burden to plead and prove standing corresponds
`
`to its burden to plead and prove the elements of
`
`its cause of
`
`action at each stage of a case.
`
`U.S. 555, 561 (1992). Therefore,
`
`Lujan v. Defs. of Wildlife, 504
`
`a party is entitled to summary
`
`
`
`judgment as to standing only if it establishes that, viewing the
`
`evidence and, drawing reasonable inferences
`
`in the light most
`
`favorable to the non—moving party,
`
`there are no genuine disputes
`
`
`
`of material fact regarding whether a plaintiff has standing.
`
`See
`
`Dep’t of Commerce v. U.S. House of Rep:esentatives, 525 U.S. 316,
`
`
`
`329 (1999).
`
`11
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 12 of 20
`
`Traditional
`
`injury—in—fact requires proof of an injury that
`
`is “concrete and particularized” and “actual or
`
`imminent, not
`
`
`
`conjectural or hypothetical.”
`
`Spokeo, 136 S. Ct. at 1548.
`
`These
`
`traditional
`
`requirements still apply but are viewed in a nmre
`
`generous
`
`
`light when plaintiffs
`
`claim a
`
`procedural
`
`injury.
`
`.C
` (2007).497549 U.S.Massachusetts v. E.P.A., Specifically,
`
`
`
`
`
`
`
`
`
`
`“[w]hen a litigant is vested with a procedural right, that litigant .C
`
`has standing if there is some possibility that the requested relief
`
`will prompt
`
`the injury—causing party to reconsider the decision
`
`
`
`that allegedly harmed the litigant.” Id. at 518.
`
`The Second Circuit described how to analyze standing when a
`
`
`plaintiff claims procedural injuries in Strubel v. Comenity Bank,
`
`
`842 F.3d l8l
`
`(2d Cir. 2016).
`
`The Second Circuit construed the
`
`Supreme Court’s decision in Spokeo to mean
`
`that
`
`“an alleged
`
`procedural violation can by itself manifest concrete injury where
`
`
`Congress conferred the procedural right to protect a plaintiff’s
`
`concrete interests and where the procedural violation presents a
`
`‘risk of
`
`real harm’
`
`to that concrete interest.”
`
`Id. at 190.
`
`However, “even where Congress has accorded procedural rights to
`
`
`
`a p"ainti:f may fail to demonstrate
`
`protect a concrete interest,
`
`concrete injury where violation of the procedure at issue presents
`
`
`
`no material risk of harm to that underlying interest.” Id.5
`
`
`
`the Ninth
`For example,
`5 Other circuits apply similar standards.
`
`Circuit has held that “[i]n the context of procedural violations,
`l2
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 13 of 20
`
`Putting all this together following Spokeo and Strubel,
`
`
`
`on behal“ 0'
`
`to demonstrate associational
`
`
`
`standing‘
`
`in
`
`its
`
`order
`
`
`members based on a procedural injury a plaintiff organization must
`
`show seven things:
`
`(1) Congress accorded procedural
`
`rights to
`
`
`plaintiff’s member(s);
`
`(2)
`
`those procedural rights were created to
`
`protect a concrete interest held by member(s);
`
`(3)
`
`
`the plaintiff
`
`has
`
`shown a “risk of real harm” to that concrete interest;
`
`(4)
`
`that
`
`risk of
`
`real harm is fairly traceable to the procedural
`
`violation;
`
`(5)
`
`that risk of real harm could be redressed by the
`
`Court;
`
`(6)
`
`the protected.
`
`interest
`
`
`is germane to the plaintiff
`
`
`
`
`in
`‘the procedures
`if
`is met
`requirement
`injury—in—fact
`the
`question are designed to protect some threatened concrete interest
`of
`[the petitioner] that is the ultimate basis of his standing.’”
`
`
`National Family Farm Coalition v. EPA, 966 F.3d 893, 909 (9th Cir.
`
`2320)
`(quoting Salmon Spawning & Qecovery All. V. Gutierrez, 545
`F.3d 1220, 1225 (9th Cir. 2008))
`(second alteration in original).
`
`Similarly, under D.C. Circuit precedent,
`a plaintiff claiming a
`procedural
`injury can demonstrate standirg through “two causal
`links:
`one
`connecting the omitted
`[procedural
`step]
`to some
`substantive government decision that may have been wrongly decided
`because of
`the lack of
`[that procedural
`requirement]
`and. one
`connecting
`that
`substantive
`decision
`to
`the
`plaintiff’s
`
`
`particularized injury.” Ctr. for Biological Diversity v. EPA, 861
`F.3d 174, 184 (D C. Cir. 2017)
`(internal quotation marks omitted)
`
`(alterations in original).
`The D.C. Circuit has explained that
`the second link in this causal chain need not demonstrate “that
`
`
`
`harnl
`to [the plaintiff]
`has
`in fact
`resulted.
`from.
`the IEPA’s
`
`procedural
`fai ures;
`instead, it must demorstrate that there is a
`
`substantial probability that
`local conditions will be adversely
`affected and thus harm [the plaintiff].” :9; (internal quotation
`marks and citafion omitted).
`
`
`
`
`
`
`
`
`
`13
`
`
`
`
`
`
`
`

`

` 2 L
`
`E
`
`
`
`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 14 of 20
`
`organization’s purpose,
`
`and (7)
`
`the participation of
`
`individual
`
`members in the lawsuit is not required to afford relief.6
`
`DISCUSSION
`
`
`
`The parties principally dispute parts (3)
`
`through (5) of this
`
`7—part
`
`inquiry —— that
`
`is, whether
`
`the plaintiffs have shown a
`
`risk of real harm to a concrete interest held by their members
`
`that is fairly traceable to the Policy and redressable by the Court
`
`— but
`
`the Court will address each part in turn.
`
`There is no doubt
`
`
`
`
`1. Whether Plaintiffs’ Members Have Procedural Rights
`
`that
`
`in this case the plaintiffs have
`
`
`
`
`satisfied the first
`
`
`requirement: Congress conferred procedural
`
`rights on the plaintiffs and their members through the citizen—suit
`
`provision of the ESA, which grants them the right to sue EPA for
`
`a failure to consult with the FWS and the NMFS.
`
`the Procedural Rights Are Designed. To Protect
`2. Whether
`
`
`Plaintiffs’ Members’ Concrete Interests
`
`The
`
`second
`
`requirement
`
`is
`
`likewise
`
`satisfied because
`
`plaintiffs’ members
`
`
`have
`
`concrete,
`
`substantive
`
`interests
`
`in
`
`certain endangered species
`
`——
`
`specifically,
`
`the Atlantic and
`
`shortnose sturgeon.
`
`The “desire 1X) use or observe 6M1 animal
`
`species,
`
`even
`
`
`for purely esthetic purposes,
`
`is undeniably a
`
`
`
`The EPA does
`these last two requirements are not at issue.
`6 Here,
`
`
`
`not dispute that the interests the plaintiffs seek to protect are
`germane to their purposes, nor does the EPA argue that the presence
`of individual members is required in this lawsuit.
`l4
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 15 of 20
`
`I]
`
`
`cognizable interest for purpose of standing.” Lujan v. Defs. o;
`
`Wildlife, 504 U.S. 555, 562—63 (1992). Plaintiffs have established
`
`that
`
`their members,
`
`including Hamel and Waldman, have not only
`
`
`aesthetic but also professional interests in the preservation of
`
`endangered sturgeon. And one purpose of the citizen—suit provision
`
`is to allow citizens to protect just such interests.
`
`3—5. Whether Plaintiffs Have Shown
`“a Risk of Real Harm” to
`
`Their Members’ Concrete Interests That Is Fairly Traceable
`
`
`to the Policy and Redressable by the Court
`
`The
`
`next
`
`three
`
`requirements
`
`relate to the
`
`traditional
`
`
`three—prong standing inquiry, beginning with injury—in—fact.
`
`As
`
`previously noted, because plaintiffs allege procedural
`
`injury,
`
`they need not
`
`
`show the same degree of concrete, particularized,
`
`and actual or imminent harm.that they would otherwise need to show,
`
`but
`
`they must nevertheless demonstrate a
`
`“risk of real harm” to
`
`
`plaintiffs’ members’
`
`legally protected interest
`
`in the sturgeon
`
`
`
`that
`
`is fairly traceable to the Policy and redressable by the
`
`Court. Strubel, 842 F.3d at 190. This is the heart of the parties’
`
`dispute concerning standing.
`
`The EPA does not deny that
`
`increased wastewater discharge
`
`
`poses a risk of real harm to sturgeon.
`
`The question is whether
`
`
`plaintiffs have shown that
`
`there was
`
`a real
`
`risk of
`
`increased
`
`wastewater discharge traceable to the Policy.
`
`
`Plaintiffs’ arguments for why there was a real risk of excess
`
`discharge are threefold. First,
`
`like the plaintiffs before Chief
`15
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 16 of 20
`
`Judge McMahon,
`
`they argue that
`
`the reason for any enforcement
`
`program in the first place is to ensure compliance.
`
`By removing
`
`the threat of civil penalties,
`
`the Policy,
`
`in plaintiffs’ words,
`
`“essentially gave the green light for non—compliance, even if the
`
`Policy did not specifically remove
`
`[permittees’] obligations and
`
`[even if]
`
`such non-compliance could be blamed on the pandemic.”
`
`Pls.’ Opp.
`
`to Def’ts’ Mot.
`
`for Summ. J., ECF No. 36, at
`
`4
`
`(“Pls ’
`
`Opp.”).
`
`The EPA responds that,
`
`in assessing whether plaintiffs
`
`have
`
`shown
`
`an
`
`injury~in—fact,
`
`courts generally presume
`
`that
`
`“respondents will conduct their activities within the law.” O’Shea
`
`V. Littleton, 414 U.S. 488, 497 (1974).
`
`Each side has a point.
`
`On the one hand,
`
`
`the raison d'étre of
`
`EPA’s Policy was
`
`that
`
`the EPA recognized that, because of
`
`the
`
`pandemic, permittees might not be able to achieve full compliance
`
`with the law.
`
`The Court should not presume complete compliance
`
`
`with the law when the EPA itself presumes the opposite.
`
`On
`
`the other hand,
`
`the Policy presumed routine reporting
`
`
`deficiencies, not excess discharge; plaintiffs must
`
`show a real
`
`risk of excess discharge in order to show a risk of real harm to
`
`sturgeon.
`
`Indeed, not only does the Policy not presume excess
`
`discharge; it requires permittees to notify EPA if they anticipate
`
`that COVID—l9 or related monitoring failures could cause excess
`
`discharge.
`
`
`
`Plaintiffs offer no evidence that EPA received any
`
`such warnings,
`
`let alone ones germane to sturgeon.
`l6
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 17 of 20
`
`In addressing these motions,
`
`the stage of
`
`the case matters
`
`because plaintiffs’ theory is not implausible.
`
`It stands to reason
`
`
`that monitoring deficiencies could well
`
`lead to excess discharge.
`
`such speculation is not
`
`enough because
`
`this
`
`is
`
`summary
`
` But
`
`judgment.
`
`
`
`No matter how plausible plaintiffs’ a'legations,
`
`the
`
`Court cannot presume, without evidence,
`
`that permittees disobeyed
`
`
`
`the law by discharging excess pollutants.
`
`.C
`Second, plaintiffs argue that the Court can inner a “potential
`
`increase in pollution from [the] hundreds,
`
`if no:
`
`thousands, of
`
`
`
`waivers that permittees sought under the Policy.” Pls.’ Opp. 4.
`
`
`However, among the NPDES facilities that failed to provide complete
`
`data and used code “Z” to justify that failure, plaintiffs have
`
`identified only one that discharges into a sturgeon habitat.
`
`SUF
`
`T 17
`
`(disputed on unrelated grounds).
`
`
`The EPA responds that the
`
`use of NPDES code “Z” indicates a lack of reporting data, but it
`
`does not
`
`indicate that an entity emitted excess discharge (let
`
`alone that
`
`the one site discharging into a sturgeon habitat did
`
`so).
`
`The EPA has
`
`the better of
`
`the argument.
`
`
`“Z” NPDES codes
`
`undeniably demonstrate monitoring failures, but that does not mean
`
`that
`
`they were coupled with excess discharge. Again,
`
`this is a
`
`summary judgment motion; a reasonable factfinder could not simply
`
`presume, without evidence,
`
`that monitoring _ailures caused excess
`
` .C
`
`discharges. Therefore, neither can the Court.
`17
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 18 of 20
`
`Finally, plaintiffs attempt
`
`to provide more concrete proof
`
`that
`
`there was a real risk of excess discharge by pointing to a
`
`single,
`
`non—peer—reviewed study by researchers at
`
`the American
`
`
`University School of Public Affairs.
`
`See Claudia Persico & Kathryn
`
`
`
`
`
`
`
`"ncreased Pollution on COVID—l9 Cases and
`Johnson, The Effects 0'
`
`Deaths
`
`(Aug.
`
`8,
`
`2020,
`
`as
`
`rev’d. Oct.
`
`29,
`
`2020), available at
`
`
`https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3633446.
`
`The
`
`authors
`
`reviewed air quality data before
`
`and after EPA's
`
`announcement of the Temporary Nonenforcement Policy.
`
`
`They found
`
`
`that counties with 6 or more Toxic Release inventory (“TRI”) sites
`
`“saw a 14 percent
`
`
`increase in pollution on average following the
`
`
`EPA’s rollback of enforcement, compared to counties with [l to 5]
`
`TRI sites.” Ed; at l.
`
`The EPA responds that the study concerned air pollution, and
`
`the Court cannot
`
`reasonably infer from increased air pollution
`
`
`that there was an increased risk of water pollution —— let alone
`
`
`
`of water pollution at
`
`the single site that plaintiffs identified
`
`that used code “Z” and discharged into a sturgeon habitat.
`
`Although the American University study comes a bit closer to
`
`the mark,
`
`the EPA ultimately has the better of this argument.
`
`The
`
`
`American University study is so far removed from the facts of this
`
`
`
`case that the plaintiffs seek to extrapolate from it more than a
`
`18
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 19 of 20
`
`factfinder
`
`reasonably
`
`could.7
`
`Consider
`
`each
`
`link in
`
`the
`
`inferential chain:
`
`0 Does the American University study demonstrate increased air
`pollution during the time of the Policy?
`
`
`0 Yes, viewing the study in the light most favorable to
`
`plaintiffs,
`a reasonable juror could conclude that it
`does.
`
`0
`
`Is the increase in air pollution fairly traceable to the
`
`Policy?
`
`
`
`0 Perhaps. Drawing reasonable inferences in favor of the
`plaintiff, a jury could so find.
`
`
`0 Thus, can one reasonably infer that the Policy also posed a
`
`real risk of increased water pollution?
`
`is ea very substantial
`It
`is 51 close question.
`(3 This
`logical leap; on the other hand, because this a case of
`procedural injury,
`the plaintiff need only show a “risk
`of real harm,” not
`the same concrete, particularized,
`
`and actual or
`immanent harm that would otherwise be
`
`required.
`On this lower standard, drawing inferences in
`
`p'aint‘ffs’
`favor,
`a
`reasonable juror might conclude
`that
`the American University study demonstrates a real
`r’sk of increased water pollution.
`
`
`
`
`
`
`
`the Policy caused
`0 Can one therefore infer a real risk that
`
`excess water pollution in the sturgeon habitat specifically?
`
`juror could
`No
`inference extrapolates too far.
`o This
`reasonably reach this
`specific
`conclusion about
`a
`
`particular aquatic habitat
`from the far different,
`far
`more general evidence about air pollution offered by the
`American University study.
`
`In the end, even when viewing the evidence in the light most
`
`
`favorable to plaintiffs and drawing all reasonable inferences in
`
`
`
`
`7 The Court does not consider the question whether this non—peer—
`
`reviewed study is rigorous enough to pass muster under Daubert.
`19
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:20-cv-06572-JSR Document 41 Filed 06/02/21 Page 20 of 20
`
`their
`
`favor,
`
`a
`
`
`
`
`fact‘inder could not
`
`
`reasonably conclude from
`
`
`plaintiffs’ scant evidence that there was a real risk of increased
`
`
`
`discharge in sturgeon habitat traceable to the Policy. Therefore,
`
`plaintiffs lack standing.
`
`For the foregoing reasons, by bottom—line order, ECF No. 40,
`
`
`this Court denied the plaintiffs’ motion for summary jadgment and
`
`
`
`granted the defendants’ motion for summary judgment.
`
`
`The Clerk is respectfully directed to close this case.
`
`
`
`:Siggflj /Z¢gé:
`
`
`Jim
`
`RAKOF
`
`U S. D. J.
`
`
`
`SO ORDERED.
`
`Dated:
`
`New York, NY
`
`June 2, 2021
`
`20
`
`