Reflections from COVID-19: Citizen Suits in Environmental Enforcement

Reflections from COVID-19: Citizen Suits in Environmental Enforcement, American Bar Association, Morgan Johnson, Melanie McNett, Mara Yarbrough, and Zacary E. Wilson-Fetrow, March 29, 2021

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.