EPA Sued over Halt to Pollution Monitoring

11.06.2020 -

The US Environmental Protection Agency (EPA) is facing a third lawsuit over its policy to suspend penalties for industrial companies that do not monitor emissions during the coronavirus pandemic.

On Mar. 26, the EPA announced it would suspend monitoring, reporting and enforcement under several key environmental laws – including the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Resource Conservation and Recovery Act and the Emergency Planning and Community Right‐to‐Know Act – for the duration of the pandemic.

The agency said it would not seek penalties for noncompliance with civil regulations for the undetermined period, but stressed that the policy did not apply to “intentional criminal violations of law.”

Several states and environmental groups meanwhile have brought lawsuits over the March memo, saying the agency was abdicating its duty to enforce environmental laws, which would lead to unknown amounts of pollution flowing into the air and water.

On Jun. 8, the states suing jointly asked the court for a preliminary injunction, saying the EPA is “greenlighting industry to pollute more and care less.”

The Center for Biological Diversity now has served notice of plans to file a lawsuit of its own against the suspension within 60 days, thereby pursuing a different legal angle. The group argues that the suspension of environmental law enforcement violates the Endangered Species Act by “risking harm to both imperiled animals and their habitat.

“Clean air and clean water are critical to people and wildlife, and yet the Trump administration is doing everything it can to give polluters free rein,” Jared Margolis, the organization’s senior attorney, said, adding that “this memo allows them to walk away from their duties.”

The filing, which is supported by clean water advocacy groups, claims the EPA failed to initiate emergency consultation procedures with the wildlife agencies, “to ensure that actions are taken to minimize the effects of any emergency response to Covid-19.”

To be eligible for enforcement discretion, production facilities are required to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the pandemic.

 “Allowing the policy to apply indefinitely — with no sunset provision or discussion of the circumstances under which the policy would be revoked — provides an opportunity for regulated entities (and the Trump administration) to exploit the current epidemic to allow unfettered pollution and hence harm to protected species in the absence of the safeguards,” the filing said.

The agency has not acknowledged any of the lawsuits. In the March memo, administrator Andrew Wheeler said the EPA is committed to protecting human health and the environment, but recognizes that “challenges resulting from efforts to protect workers and the public from Covid-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements."