|RICHMOND (May 13, 2020) – Attorney General Mark R. Herring today joined a coalition of nine attorneys general in filing a lawsuit against Trump’s Environmental Protection Agency (EPA) challenging its policy under which EPA “will not” enforce bedrock monitoring and reporting obligations under a wide range of federal environmental laws due to the COVID-19 crisis. On April 15, Attorney General Herring called on EPA to denounce the memorandum that announced this nationwide policy.
The coalition argues that EPA’s policy, called the “Temporary Policy on COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (non-enforcement 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.
“We cannot allow EPA to use COVID-19 as an excuse to shirk their responsibilities to enforce critical environmental laws and regulations,” said Attorney General Herring. “Many of these laws and regulations are aimed at keeping our air cleaner and are directly tied to cutting down on many of the respiratory conditions that could make people more susceptible to serious complications from COVID-19. While our country battles a virus that disproportionately affects individuals who have respiratory conditions, the federal government should ramp up enforcement of these policies, not pull back.”
On March 26, 2020, EPA issued the non-enforcement policy, which applies retroactively to March 13th, and has no end date. EPA states in the policy that it does not intend to take enforcement action against companies that, for example, 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 EPA, and to state and local agencies.
Attorney General Herring and his colleagues recognize the immense challenges posed by the COVID-19 pandemic and its response. However, the coalition argues that it was arbitrary and capricious for 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 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 EPA failed to consider the adverse impacts on public health that the policy will have amidst 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 public notice of non-compliance with pollution restrictions, communities bordering industrial facilities, and are often low income and minority communities, could be exposed to harmful pollution without warning. Additionally, increased air pollution and the failure to report excess air pollution could pose significant added dangers to individuals with existing respiratory illnesses (e.g., asthma). This circumstance is made more troubling by 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 Herring and a multistate coalition submitted 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. EPA has neither responded to the letter nor taken any of the actions requested by the Attorneys General.
Joining Attorney General Herring in the lawsuit, which was filed today in the United States District Court for the Southern District of New York are the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon and Vermont.