Environmental Groups and State Attorneys General Challenge EPA Position on COVID-19 Enforcement Discretion; EPA Does Not See Basis for Concern

April 18, 2020

Douglas Schleicher

Environmental Groups and State Attorneys General Challenge EPA Position on COVID-19 Enforcement Discretion; EPA Does Not See Basis for Concern

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On April 16, 2020, 15 environmental groups led by the Natural Resources Defense Council and Public Citizen filed suit in federal court in New York in response to the enforcement policy announcement by the United States Environmental Protection Agency in late March.

EPA's announcement was issued on March 26, 2020 and explained how EPA would enforce environmental requirements in light of the COVID-19 pandemic. Read our analysis of the announcement here. 

Separately, 14 state attorneys general sent a letter to EPA on Wednesday, April 15, challenging the same policy and stating that state governments will hold companies accountable.

During a conference call on Friday, April 17, Susan Parker Bodine, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, expressed genuine befuddlement about the basis of the concerns. “[W]e were greatly surprised by the reaction we got to the memo…. [T]he memo expressly does not waive any environmental requirements… It talks about how the agency would exercise enforcement discretion in circumstances where compliance is not possible because of the current COVID-19 public health emergency.”

The lawsuit claims that the new EPA policy will reduce compliance reporting, reducing the information available to the public and potentially increasing pollution. According to the complaint, environmental monitoring and reporting are essential for the communities which neighbor regulated businesses. “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,” the plaintiffs allege. Further, the complaint asserts that the EPA policy will contribute to the spread of the disease.

In early April, the plaintiffs petitioned EPA to promulgate a rule that would require any company to provide public notice to EPA if it planned to stop reporting pollution numbers, in order to keep the public informed. The suit seeks a declaratory judgment stating that EPA failed to timely respond to the petition and an order that would force the EPA to respond within five days of the judge’s decision.

During the April 17 call, Ms. Bodine stated that EPA cannot review and approve in advance modified staffing plans as a result of the COVID-19 crisis given that the agency regulates about 4,600,000 facilities. As a result, the agency will exercise its discretion to enforce regulations after the fact based on the information available to it.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Douglas F. Schleicher is the chair of the environmental practice group at Klehr Harrison.