Nine AGs sue EPA over non-enforcement policy

The lawsuit was filed Wednesday in the U.S. District Court for the Southern District of New York and includes the attorneys general of New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia, and Vermont. It concerns a policy issued by the EPA on March 26, stating that the agency doesn’t intend to take enforcement action against companies that violate provisions of environmental laws—such as the Clean Air Act, Clean Water Act, and Safe Drinking Water Act—provided that the companies link COVID-19 to their non-compliance.

The coalition of attorneys general argue that the EPA 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 New York Attorney General Letitia James, who leads the coalition. “The EPA’s non-enforcement policy puts our already damaged public health in danger by freely allowing pollution from big corporations.”

The coalition argues that, while it recognizes the “immense challenges posed by the COVID-19 pandemic and its response, it was “arbitrary and capricious” for the EPA to adopt an across-the-board non-enforcement policy “without considering whether it will worsen harms to public health.” The coalition further argues the EPA “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 further contends 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 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.

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