EPA Sued by States for COVID-19 Nonenforcement Policy

Nine states filed a complaint against the Environmental Protection Agency (EPA) and its administrators alleging the EPA’s policy that it will not enforce many monitoring and reporting requirements during the COVID-19 pandemic is an overstep of its authority. The states say it should not be optional to enforce requirements or report non-compliance to the EPA.

The states involved in the lawsuit are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia. They alleged the EPA’s enforcement policies during the COVID-19 pandemic are not practical because they are broad and open-ended. They argued the policy will result in increased pollution from entities that will take advantage of the nonenforcement posture.

“Despite EPA’s longstanding recognition that environmental monitoring and reporting requirements protect public health by informing communities of pollution hazards and deterring industry noncompliance with pollution limits, EPA failed—in the midst of a public health emergency—to consider the impacts of relaxing those obligations on public health. It was arbitrary and capricious for EPA to adopt a broad ranging policy without considering whether it will exacerbate harms to public health during the current crisis,” the complaint said.

The complaint alleged this nonenforcement policy will lead to reduced industry compliance and an increase in chemical accidents, as well as a decrease in publicly-available information needed to address pollution.

“The nonenforcement policy places the States between a rock and hard place: either incur increased burdens and attempt to fill EPA’s enforcement shoes at a time when they are increasingly strapped for resources, or risk the health of our residents based on the unfounded assumption that the policy will not cause harm,” the states said.

The nonenforcement policy was announced on March 26 after the American Petroleum Institute requested the EPA waive non-essential compliance obligations citing that on-site monitoring would be challenging. The policy mandated that entities should still “make every effort to comply” with the environmental standards, but if compliance is not practical they should act responsibly and record information about noncompliance. The EPA will not penalize violations if they agree the cause of noncompliance was COVID-19.

The states said the policy is flawed because it does not explain how the EPA will become aware of noncompliance and there is no requirement for the EPA to make information about the noncompliance public, even if entities choose to report it to the EPA. They also said the policy does not address potential impacts to public health, which they allege is the core of the EPA’s mission.