Attorney General James today led a coalition of nine attorneys general in filing a lawsuit against Trump’s Environmental Protection Agency (EPA) challenging its new policy to stop enforcing requirements under a wide range of federal environmental laws due to the coronavirus disease 2019 (COVID-19) crisis.

The policy states that the EPA does not intend to take enforcement action against companies that violate provisions of environmental laws such as the Clean Air, Clean Water, and Safe Drinking Water Acts, provided that the companies link COVID-19 to their non-compliance. The coalition argues this policy is overly broad, lacks transparency and accountability, and will result in higher pollution emissions by industry and corresponding impacts on public health and the environment.

“The Trump Administration cannot give industries the green light to ignore critical environmental and public health laws, especially during a public health crisis,” said Attorney General James. “The EPA’s non-enforcement policy puts our already damaged public health in danger by freely allowing pollution from big corporations. There has never been a more important time to prioritize the health of our communities, and we will not stop fighting for the health and safety of all Americans.”

On March 26, 2020, the EPA issued the non-enforcement policy, which applies retroactively to March 13th, and has no end date. The EPA states in the policy that it does not intend to take enforcement action against companies that violate existing reporting and monitoring requirements for laws such as the Clean Air, Clean Water, and Safe Drinking Water Acts, provided that the companies link COVID-19 to their non-compliance. The policy also makes it optional for parties to report non-compliance to the EPA, and to state and local agencies.

The coalition recognizes the immense challenges posed by the COVID-19 pandemic and its response. However, the coalition argues that it was arbitrary and capricious for the EPA to adopt the “across the board” non-enforcement policy without considering whether it will worsen harms to public health. Further, as a number of states have demonstrated themselves, the agency could have pursued a reasonable policy that provides necessary and appropriate flexibility to businesses without waiving requirements necessary to protect public health and the environment.

In the lawsuit, the coalition contends that the EPA lacks legal authority to effectively waive critical monitoring and reporting obligations that inform regulators and the general public of pollution hazards. The lawsuit also alleges that the EPA failed to consider the adverse impacts on public health that the policy will have amidst the COVID-19 pandemic, including impacts from increased pollution, and a lack of available public information about that pollution, that may result from the policy. For example, without requiring regulated businesses provide public notice of non-compliance with pollution restrictions, communities bordering industrial facilities, which are often low-income and minority communities, could be exposed to harmful pollution without warning. Additionally, increased air pollution and the failure to report excessive air pollution could pose significantly added danger to individuals with existing respiratory illnesses (e.g., asthma). This circumstance is made more troubling by the EPA’s statement in the policy that it may waive enforcement even in situations where a polluter’s non-compliance presents an imminent threat to public health or the environment.

On April 15, Attorney General James led a coalition of 14 state attorneys general in submitting a letter to EPA Administrator Andrew Wheeler regarding the policy’s impact on our nation’s bedrock environmental and public health laws – and the protections these laws afford to public health, safety, and the environment. The letter urged that the March non-enforcement policy be rescinded in favor of guidance to companies that doesn’t put the health of our communities at even greater risk than they are already facing due to the coronavirus. The EPA has neither responded to the letter nor taken any of the actions requested by the attorneys general.

The lawsuit, which was filed today in the United States District Court for the Southern District of New York, includes the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia, and Vermont.

This matter is being handled by the Environmental Protection Bureau of the New York Attorney General’s Office and is led by Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers, Assistant Attorneys General Meredith Lee-Clark, Samantha Liskow, Brian Lusignan, and Patrick Omilian, Project Attorney Benjamin Cole, and Chief Scientist Anthony Dvarskas, under the supervision of Bureau Chief Lemuel M. Srolovic and Chief Counsel for Federal Initiatives Matthew Colangelo. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux, all under the oversight of First Deputy Attorney General Jennifer Levy.

Please visit the Attorney General’s website to read this press release in Spanish.

Lockwood Law

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