ELR Citation: 51 ELR 20097
No(s). 20-cv-6572 (JSR) (S.D.N.Y. Jun 2, 2021) (Rakoff, J.)

A district court denied nonprofit groups' motion for summary judgment in a challenge to EPA's failure to consult with FWS and NMFS before announcing a temporary nonenforcement policy in response to the COVID-19 pandemic. With the policy having since been terminated, the groups sought to compel EPA to engage in post-hoc consultation with the Services. The Services argued the groups offered no evidence from which a jury could reasonably infer that the policy caused real risk to a concrete interest held by their members, namely risk of excess discharge into sturgeon habitat. The court found that a reasonable fact finder could not simply presume, without evidence, that monitoring failures caused excess discharges. It therefore denied the groups' motion and granted summary judgment for FWS and NMFS.