EPA Decision Not To Enforce Some Environmental Laws During Pandemic Sparks Lawsuit

Several environmental organizations have filed a lawsuit against the U.S. Environmental Protection Agency (EPA), claiming federal regulators are using the ongoing COVID-19 pandemic to illegally relax environmental laws and endanger public health.

More than a dozen organizations filed a complaint for declaratory and injunctive relief (PDF) in the U.S. District Court for the Southern District of New York on April 16, including the Natural Resources Defense Council (NRDC), Clean Water Action, Public Citizen, Flint Rising and others. The lawsuit names the EPA, as well as Administrator Andrew Wheeler and Assistant Administrator Susan Parker Bodine as defendants.

On March 26, the EPA announced it would be using enforcement discretion as response to the coronavirus pandemic. The agency indicated that it anticipated some businesses would not be able to meet environmental reporting requirements as a result of stay-at-home orders and state shutdowns caused by the COVID-19 outbreak.

“The consequences of the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results. As a result, there may be constraints on the ability of a facility or laboratory to carry out certain activities required by our federal environmental permits, regulations, and statutes,” the EPA wrote in a memorandum (PDF) to all governmental and private sector partners. “These consequences may affect reporting obligations and milestones set forth in settlements and consent decrees.”

However, environmental groups say the EPA is simply using the pandemic to give industry groups a free pass to pollute. They also say the policy doesn’t allow the public to know when these companies are out of compliance and may be polluting their air and water.

The EPA requested companies inform the agency if they stop monitoring for pollution, but does not require they do so.

“Now more than ever, we need EPA to do its job and protect our health—not put it at greater risk,” Gina McCarthy, president and CEO of NRDC, said in a press release. “During a pandemic that is hitting people with heart and lung disease the hardest, it is senseless to push forward a ‘don’t ask, don’t tell’ policy for polluters that will allow them to make our air and water dirtier without warning or repercussion. This policy benefits polluters and polluters alone—and all at our expense.”

On April 1, the NRDC and other groups sent a petition (PDF) to the EPA calling for an emergency rule which would require companies to report when they stop monitoring air and water emissions, which would then be disclosed to the public. However, the lawsuit claims that petition was ignored.

As a result, this latest filing calls for a federal judge to order the EPA to respond to the petition.

“EPA’s new non-enforcement policy presents a huge threat to downstream, downwind, and fenceline communities around the country. Environmental monitoring and reporting are essential for those communities,” the lawsuit states. “Without timely information about air and water emissions, people are unable to take steps to protect themselves from pollution or pursue appropriate enforcement against polluters.”