On April 16, 2020 a coalition of environmental groups commenced the action National Resources Defense Council, et al. v. U.S. EPA et al., No. 20-3058, in the Southern District of New York, over concerns about the EPA’s policy on “enforcement discretion” in response to the COVID-19 pandemic. The plaintiffs are demanding that the EPA be compelled to respond to a Petition for Emergency Rulemaking filed on April 1, 2020, requesting that the EPA publish an interim final rule to ensure prompt public notice of a regulated entity’s failure to conduct required monitoring or reporting in reliance on the EPA’s new policy change.
In a memo dated March 26, 2020, the EPA announced it would be following a temporary policy in which it would not seek penalties for noncompliance with routine monitoring and reporting obligations. The policy addresses the impact of potential worker shortages and travel restrictions that seek to limit the spread of COVID-19, and advises entities how to address circumstances in which it is determined that reporting is not reasonably practical.
In the wake of the EPA’s new policy announcement, a Petition for Emergency Rulemaking was filed by the group of environmental organizations seeking an interim final rule from the EPA to compel entities that do not conduct required monitoring or reporting due to COVID-19, to notify the EPA and disclose certain information about the pollution limits or standards for which it is unable to monitor or report. For more details regarding the petition, review our earlier reporting here.
In the action, the plaintiffs claim the EPA delayed and failed to respond to the petition. The plaintiffs seek declaratory and injunctive relief from the federal court declaring that the failure to respond is unreasonable and unlawful, and ordering the EPA to issue a final response to the petition as soon as possible and no later than five days from the court’s entry of judgment.
The complaint alleges the EPA’s policy applies to every industry in the country and creates a serious and immediate risk that industries, facilities, and regulated entities will stop monitoring and reporting for compliance with pollution limits and without any notice to the EPA or public. The non-enforcement policy covers nearly every type of monitoring related to EPA’s regulation of air and water pollution, chemical releases, oil spills, hazardous waste storage, leaking tanks, and pipelines.
The plaintiffs argue the policy will present a threat to downstream, downwind, and fenceline communities because without notice of air and water emissions, these communities will be unable to protect themselves from pollution or pursue enforcement against the polluters. Further, the plaintiffs argue the information collected under the reporting programs plays a key role in EPA rulemaking and state permitting proceedings, and therefore suspending collection of data could distort future rulemaking. The plaintiffs also note the policy is dangerous in light of research demonstrating that increased air pollution causes a statistically significant increase in the COVID-19 death rate, increasing the vulnerability of certain communities.
According to the complaint, the EPA’s failure to respond to the petition has garnered support from at least 15 state attorneys general calling on the EPA to rescind the policy. Since the EPA is continuing to address other deregulatory actions, the plaintiffs see no reason why the EPA should be able to avoid responding to the petition.
Continue to check to the Environmental Law Monitor for ongoing updates about this suit.