EPA’s COVID-19 “Enforcement Discretion” Policy Challenged in Suit Commenced by Nine States’ Attorneys General

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The United States Environmental Protection Agency (U.S. EPA) continues to face backlash over its policy relaxing certain monitoring and reporting obligations under various federal environmental laws amid the COVID-19 pandemic. Last week nine states’ attorneys general sued the U.S. EPA in the Southern District of New York in the action titled State of New York et al. v. U.S. Environmental Protection Agency et al., No. 1:20-cv-03714, in which New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia contend the U.S. EPA’s decision to exercise “enforcement discretion” with respect to certain requirements under the law will result in less federal enforcement, reduced industry compliance with substantive requirements, an increased risk of chemical accidents and releases, and a decrease in publicly available information to address pollution.

Our blog post from April 23, 2020 provided details of a lawsuit mounted by a coalition of environmental groups against the EPA, National Resources Defense Council, et al. v. U.S. EPA et al., No. 20-3058, over its failure to respond to a Petition for Emergency Rulemaking requesting that the EPA publish an interim final rule to ensure the public receives notice of an entity’s failure to conduct monitoring or reporting in reliance on the “enforcement discretion” policy.

The controversy at the center of both suits stems from a March 26, 2020 EPA memorandum announcing the EPA would be exercising “enforcement discretion” as it relates to noncompliance with obligations under environmental laws resulting from the COVID-19 pandemic.  In the memo, the EPA notes the pandemic has caused certain workplace restrictions, including travel restrictions, social distancing measures, and worker shortages, that may make compliance with certain monitoring and reporting obligations under the environmental laws difficult for regulated entities to meet.  The memo instructs facilities that cannot meet the obligations under the various environmental laws to minimize the effects and duration of any noncompliance, to identify the dates of noncompliance, and to explain how decisions and actions were taken in response to COVID-19, including the steps taken to come into compliance at the earliest opportunity. 

Last week’s lawsuit filed on behalf of the states’ attorneys’ general seeks an order declaring that the EPA exceeded its statutory jurisdiction in adopting the non-enforcement policy, and requests that the court vacate the policy and enjoin the EPA from applying it.  The suit alleges that policy provides regulated entities with a blanket waiver of mandatory compliance monitoring and reporting requirements set forth in the Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and the Emergency Planning and Community Right to Know Act (EPCRA).  According to the Complaint, the obligations imposed by these environmental laws ensures the protection of human health and the environment.  The suit contends that the monitoring and reporting requirements are “bedrock obligations” and are “fundamental to the successful implementation of these laws.” 

Prior to the commencement of the lawsuit, on April 15, 2020 the attorneys general sent EPA Administrator, Andrew Wheeler, a letter objecting to the overbroad nature of the policy and the EPA’s failure to consider its impact on the public health and the environment.  The states noted that the curtailment of enforcement of the federal laws by the EPA will harm the states by forcing the states to expend resources in an effort to fill the role of the agency.  The EPA did not respond to the letter, which prompted the lawsuit filing.

Notably, the EPA has published on its website common questions and answers in an effort to clarify any uncertainty raised by the March 26 memo. A plain reading of the memo policy states the EPA will not seek penalties for noncompliance with routine monitoring and reporting requirements if, on a case-by-case basis, EPA agrees that such noncompliance was caused by the COVID-19 pandemic. The key to avoid penalties, however, is to document any hardships. Regulated parties must document the basis for any claim that the pandemic prevented them from conducting that routine monitoring and reporting and present it to EPA upon request. Indeed, the memo does not state that the COVID-19 pandemic will excuse exceedances of pollutant limitations in permits, regulations, and statutes.

While environmental groups and certain state AGs argue that the EPA’s enforcement policy represents a blanket waiver for reporting and monitoring requirements, industry experts contend that it is a reasonable response to an unprecedented public health crisis.

All in all, the March 26 EPA memo at issue is a fairly short and light read. Judge for yourself by reading the memo and decide what it allows and doesn’t.