EPA Inaction 2022 Update
EPA’s Waiting-for-Godot approach
by Nina Bell • June 27, 2022 •
Last year I wrote about how Congressional intent gets defeated by EPA inaction using the example of the water quality standards in Washington that are needed to protect salmon and orcas. The saga since then has become—I don’t know—Kafkaesque?
Late in December 2021, a federal court ordered EPA to make determinations on whether these Washington’s standards were sufficient; she gave the agency six months. It was a resounding win for us.
Refreshing your memory, the case started with an NWEA petition to EPA to fix the Washington standards in 2013, nine years ago! After successfully suing EPA to get it to answer the petition, EPA then promptly denied it. Our lawsuit over the denial resulted in the court’s order.
Fast forward to today, when the six-month deadline is upon EPA and, at the last minute, it is frantically asking that the court extend the time. This was done first with a motion seeking 60 extra days that was filed jointly with NWEA based on the fact that we are trying to work out a solution. But the next day, EPA filed an independent motion claiming that it needed an indefinite delay because the court got the decision wrong. Yeah, way to work together and build trust EPA.
Of course, we had to oppose EPA’s attack on the court’s order. I’m honestly not sure what they thought we would do: just sit back and let them argue that the judge got it wrong the first time? It is, after all, a solid win for NWEA and the environment.
The heart of this case is EPA inaction. Writing that “EPA’s Waiting-for-Godot approach . . . cannot be justified with the framework or purpose of the [Clean Water Act],” federal district court Judge Marcia J. Pechman pointed to Washington’s long-standing failure to protect aquatic species, citing EPA’s having “acknowledge[ed] Washington’s feeble efforts to timely comply with the [Clean Water Act]” while the federal agency itself “has unreasonably abandoned its role for years.”
EPA’s response to the judge’s stinging rebuke to their delay? More delay.
I’d say here that it all leaves me speechless but in truth, the other day I wrote a declaration to support our brief before the court explaining why she got it just right and EPA’s request for more delay is all wrong. So, I was not, in fact, speechless. Maybe it’s all more than you would like to read but here it is.
Meanwhile, back at the courthouse, Judge Peckman denied the request for 60 additional days pointing out that EPA provided “no indication that EPA has done anything to comply with the Court’s Order” and that EPA only talked about what it “‘would’ or ‘could’ do to make the necessity determination not what affirmative actions have been taken to date.”
Color her unimpressed.