EPA’s COVID-19 Temporary Enforcement Policy Under Attack by Coalitions of Environmental Conservation Groups and States

EPA’s COVID-19 Temporary Enforcement Policy Under Attack by Coalitions of Environmental Conservation Groups and States

Three environmental conservation groups have announced plans to sue the U.S. Environmental Protection Agency (EPA) in response to EPA’s issuance of its March 26, 2020 Temporary Policy Memo, which modified the agency’s enforcement discretion in light of the sweeping impact of the COVID-19 pandemic in the United States (“Temporary Enforcement Policy”).

The Center for Biological Diversity, Waterkeeper Alliance Inc. and Riverkeeper Inc. contend that EPA’s Temporary Enforcement Policy enables polluting industries, including oil and gas companies, to shirk their obligations to comply with monitoring and reporting requirements under the Clean Water Act, Clear Air Act, Safe Drinking Water Act, and other laws. The environmental groups also argue that EPA is violating the Endangered Species Act by failing to ensure that the Temporary Enforcement Policy does not put threatened and endangered species at risk nationwide.

The anticipated legal action by these conservation groups is the latest in a barrage of suits challenging EPA’s Temporary Enforcement Policy. On April 16, 2020, a coalition of 14 environmental justice, public health and public interest organizations led by the Natural Resources Defense Council filed suit against EPA in federal court in New York. In their Complaint, these groups argue that the lives of citizens who live in “downstream, downwind and fenceline communities” near industrial facilities are being put in danger, both by increased pollution levels and by the reduced amount of emissions information available to the public.

Additionally, on May 13, 2020, a coalition of nine states' attorneys general in New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia and Vermont sued EPA in New York federal court, claiming that the Temporary Enforcement Policy exploits the COVID-19 crisis by tolerating industrial pollution at a time when citizens with existing respiratory and cardiovascular issues are at heightened risk. The states’ Complaint alleges that 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,” and proclaims that EPA’s “non-enforcement policy” represents “an abdication of EPA’s responsibilities promulgated without notice or comment.”

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