Nine States Sue the EPA Seeking the COVID-19 Enforcement Policy to Be Vacated
Nine states have filed a lawsuit against the EPA alleging that the EPA's "Temporary Policy on COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program" is ultra vires, arbitrary and capricious, and is tantamount to an agency rulemaking, promulgated without notice and comment in violation of the Administrative Procedures Act, 5 U.S.C. 553. The complaint alleges that numerous federal environmental laws mandate that regulated entities conduct compliance monitoring and reporting and that the EPA does not have statutory authority to waive compliance with these requirements through the adoption of a policy. The states of New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia are asking for the court to vacate the EPA's COVID-19 Enforcement Policy. A copy of the complaint is available here.
If your company is facing the inability to comply with environmental laws due to impacts from the COVID-19 pandemic, it is important to document steps taken to attempt to comply, as well as to consult state guidance in which you maintain operations. Many of the states, including parties to the lawsuit, have developed their own COVID-19 environmental compliance guidance.