March 29, 2021

Reflections from COVID-19: Citizen Suits in Environmental Enforcement

Morgan Johnson, Melanie McNett, Mara Yarbrough, and Zacary E. Wilson-Fetrow

It has been almost a year since the U.S. Environmental Protection Agency (EPA) announced a temporary enforcement discretion policy in response to the COVID-19 pandemic on March 26, 2020, which some characterized as suspending EPA’s enforcement of environmental protection laws. The policy was placed under increasing fire from citizen groups that rapidly launched challenges to maintain enforcement actions. From the onset, environmental groups put EPA and the regulated community on alert that citizen enforcement would continue, despite the discretion policy. First, on April 16, 2020, the Natural Resources Defense Council (NRDC) and partner organizations sued EPA over the discretion policy, citing the EPA’s silence to their Administrative Procedure Act (APA) petition for emergency rulemaking requesting increased transparency regarding the policy. Then, on May 13, 2020, nine state attorneys-general followed and sued EPA, seeking to vacate the discretion policy. Ultimately, the NRDC suit was dismissed for lack of standing, and the states’ suit was dismissed voluntarily.

While the policy terminated on August 31, 2020, these environmental citizen suits in the “age of COVID-19” have raised novel challenges that all parties must navigate in crisis. For example, EPA’s policy did not halt or relax citizen suit deadlines, such as the 60-day notice of intent letter requirements of the Clean Water Act (CWA) and Clean Air Act (CAA), therefore citizen groups seeking to fill in the gaps in enforcement were still required to wait 60 days to file a complaint. Additionally, because the discretion policy eased some monitoring and reporting requirements, proof necessary to establish a claim or industry defense may be more difficult to establish.

Even before the COVID-19 pandemic, citizens have historically sought to prevent the rollback of environmental enforcement and regulation surrounding crises. While citizen actions are not always successful, their prosecution demonstrates avenues for continued and future enforcement possibilities.

For instance, in the year following the Three Mile Island accident in 1979, over 900,000 gallons of water contaminated by radioactive waste built up throughout the nuclear generating station. The Nuclear Regulatory Commission (NRC), seeking to dispose of the contaminated water, sought to use an unproven technology to decontaminate the water before discharging it into the neighboring Susquehanna River. Inthe ensuing CWA citizen suit, the Susquehanna Valley Alliance alleged the program would allow the discharge of “high-level radioactive waste” into waters of the United States. While recognizing the deference due to the NRC’s expertise in managing radioactive waste, the Third Circuit reversed dismissal of the suit, holding that the “NRC has no discretion . . . to permit a prohibited discharge.” Susquehanna Valley All. v. Three Mile Island Nuclear Reactor, 619 F.2d 231 (3d Cir. 1980).

After Hurricanes Rita and Katrina in 2005,  the Louisiana Department of Environmental Quality issued emergency orders easing restrictions on landfill waste. The orders allowed an expanded designation of certain wastes as “construction and demolition” debris, which were subject to fewer “safety, reporting, and monitoring requirements” than household solid waste. These orders were renewed at least through 2007. In the ensuing legal challenge, the Louisiana Environmental Action Network and Sierra Club argued that the emergency orders were preempted by the Resource Conservation and Recovery Act (RCRA), CWA, and CAA, and “withdr[e]w federal health, safety, and welfare protections.” However, the court dismissed the action, holding that the plaintiffs failed to allege a concrete and particularized injury resulting from the easing of waste regulation. La. Envtl. Action Network v. McDaniel, No. 06-4161, 2007 Westlaw 2668880 (E.D. La. Sept. 5, 2007).

Finally, citizen suits have been proposed in academic writing since 1997 as an enforcement solution during government shutdowns. Enforcement actions by the EPA were significantly reduced during the shutdowns in 1995–1996in 2013, and in 2018–2019, as much of the EPA was furloughed. These crises drove concerns of unregulated pollution, endangered species takings, and other environmental violations. Where the “government lacks enforcement resources,” even through its own disinclination, citizen actions can especially provide critical enforcement demands.

These historical examples provide perspectives on how citizen actions during crises can be used to counter reductions in government enforcement of environmental regulation. Even though concerned citizens may be timid to occupy government time and resources during crisis, citizen actions can still occupy crucial enforcement holes to protect environmental health.

Beyond challenging the EPA’s COVID-19 enforcement discretion policy, citizen organizations continued to bring challenges to the Trump administration’s environmental deregulation during the pandemic, some of which have been decided but many of which still remain in active litigation. For example, two high-profile citizen suits saw major developments in the COVID-19 pandemic. First, in a victory for the Standing Rock Sioux Tribe against the Dakota Access Pipeline (DAPL), a federal court on March 25, 2020, held that the U.S. Army Corps of Engineers failed to adequately consider the health and environmental impacts on the Tribe in the event of an oil spill. Finding that the Corps violated NEPA when it ignored expert critiques regarding leak-detection systems, operator safety records, adverse winter conditions, and worst-case discharges,the court ordered the agency to prepare a full environmental impact statement (EIS).

In the words of Standing Rock Sioux Chairman Mike Faith, “[a]fter years of commitment to defending our water and earth, we welcome this significant legal win.” In July, the DAPL was further ordered to stop the flow of oil and empty the pipeline in 30 days. While the Corps began the EIS process in September, the July injunction was stayed by the D.C. Court of Appeals on emergency motions before the shutdown of the DAPL. The D.C. Circuit stated that the district court failed to “make the findings necessary for injunctive relief” under the “traditional four-factor test.” The defendants’ full appeal is ongoing.

Additionally, on April 15, 2020, the Montana District Court sided with citizen-plaintiff groups against the Keystone XL pipeline,  revoking a key water crossing permit and ordering suspension of filling and dredging activities until the Corps conducts formal consultations pursuant to the Endangered Species Act (ESA). Set to run 1,179 miles from Alberta, Canada, to Nebraska, and then to refineries on the Gulf coast, the XL pipeline has been controversial since it was first proposed in 2008. The Obama Administration cancelled the project due to concerns about its impact on climate. Yet, it was revived by the Trump Administration with the issuance of Nationwide Permit 12, allowing for fast-tracked construction.

The Court’s April 15 order invalidated the permit, which has prevented the pipeline’s construction. On July 6, the Supreme Court stayed the district court’s injunction of Nationwide Permit 12, but left it intact as the injunction applies to the XL pipeline. Still, in October 2020, TC Energy announced it awarded over $1.6 billion to six contractors for construction of the XL pipeline. The case remains on appeal, but on January 20, 2021, President Biden rescinded a separate permit, which had allowed the pipeline to transit the United States-Canada border, on his first day in office. Construction halted on the project that morning.

Additionally, citizen challenges to Trump-era rollbacks are still ongoing. In one example of ongoing litigation with far-reaching implications for species and habitat protection, citizen groups spearheaded by Earthjustice are suing the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) over a trio of 2019 revisions to the ESA. In a one-two-punch maneuver, the plaintiffs issued60-day notice of intent to sue pursuant to section 11(g) of the ESA, alleging the agencies violated provisions of sections 4 and 7 of the ESA. Next, “out of an abundance of caution” just one day later, filed a complaint pursuant to the APA. The case continues after a second amended complaint was filed in June 2020 following an order granting the defendants’ motion to dismiss.

To date, according to the Institute for Policy Integrity, of over 100 lawsuits against agency actions that have been decided, 85 have defeated agency actions that would have led to environmental deregulation. Between the November 2020 election and Inauguration Day in January 2021, four such cases were decided: three in favor of citizen group plaintiffs and one in partial favor of the challenged agency.

In Rocky Mountain Wild v. Bernhardt, No. 19-00929, 2020 WL 7264914 (D. Utah Dec. 10, 2020), the citizen-plaintiffs failed in their challenge under the National Environmental Policy Act (NEPA) to vacate 59 leases of public land. However, the court held that the Bureau of Land Management (BLM) complied only partially with NEPA and remanded the case to BLM to analyze reasonable lease alternatives.

In Ctr. for Bio. Diversity v. Bernhardt, 982 F.3d 723 (9th Cir. 2020), the citizen-plaintiffs succeeded in their challenge under NEPA and ESA of a Bureau of Ocean Energy Management (BOEM) approval of an offshore drilling facility. The court vacated the approval as arbitrary and capricious because BOEM failed to quantify emissions and take of endangered species.

In Ctr. for Bio. Diversity v. Bureau of Land Mgmt., No. 20-02132 (D.D.C.), the citizen-plaintiffs succeeded in their challenge under NEPA and ESA to compel BLM to withdraw extensions to 13 mineral prospecting permits. BLM moved to voluntarily remand the case in order to conduct further analysis under NEPA and ESA.

In WildEarth Guardians v. Bernhardt, No. 16-01724, 2020 WL 6701317 (D.D.C. Nov. 13, 2020), the citizen-plaintiffs succeeded on summary judgment in their challenge under NEPA against drilling on federal land in Wyoming. The court held that BLM failed to take a “hard look at greenhouse gas emissions” when authorizing oil and gas leases.

The history of citizen suits during crises and the continued progress of citizen suits during the COVID-19 pandemic demonstrate how decisively citizen suits can serve. While EPA’s enforcement discretion policy has terminated and the COVID-19 has hopefully reached an inflection point, citizen suits may still respond to the enforcement gaps seen in the last year. Importantly, citizen suits will remain a crucial tool to augment government, even after full capacity returns to EPA, and the inauguration of the Biden Administration.

    Morgan Johnson, Melanie McNett, Mara Yarbrough, and Zacary E. Wilson-Fetrow

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    Morgan Johnson, Melanie McNett, and Mara Yarbrough are 2020 graduates of the University of New Mexico School of Law, and Zacary E. Wilson-Fetrow is 2021 J.D. candidate at the University of New Mexico School of Law.