EPA enforcement rollback challenged by attorneys general

Nine attorneys general sued agency, saying it exceeded its authority by issuing a 'broad, open-ended policy'

A flag with the EPA logo flies in front of the Environmental Protection Agency.  (Bill Clark/CQ Roll Call file photo)
A flag with the EPA logo flies in front of the Environmental Protection Agency. (Bill Clark/CQ Roll Call file photo)
Posted May 14, 2020 at 4:11pm

The EPA is facing a legal challenge from Democratic attorneys general over its easing of enforcement during the medical and economic crisis of the COVID-19 pandemic.

Nine attorneys general sued the agency Wednesday, saying it exceeded its legal authority by issuing a “broad, open-ended policy" that allows companies to determine for themselves if they can meet reporting requirements for air and water pollution during the crisis.

When EPA issued the policy March 26, the agency said it “did not expect” to seek legal penalties for violations of standard compliance and monitoring rules for federal air and water protections.

In their complaint, the attorneys general said the policy was overly broad and that increased pollution from it would hurt their states. They called for the court to scrap it.

“It was arbitrary and capricious for EPA to adopt a broad ranging policy without considering whether it will exacerbate harms to public health during the current crisis,” the attorneys general said in their complaint.

“The EPA’s non-enforcement policy puts our already damaged public health in danger by freely allowing pollution from big corporations,” New York Attorney General Letitia James, a Democrat, said in a statement.

EPA spokesman Ken Labbe declined to comment on the lawsuit but defended the policy and said it would not increase emissions. “The EPA temporary policy is a lawful and proper exercise of the Agency’s authority under extraordinary circumstances,” Labbe said. “This is not a nationwide waiver of environmental rules.”

Federal agencies have issued a flurry of regulations and rules during the coronavirus pandemic, a pattern legal experts say may be intended to avoid the reach of a law that allows Congress to strike down regulations shortly after they are finalized.

Since the pandemic swept across the U.S. in mid-March, the EPA has moved to weaken fuel-efficiency standards, mercury emission rules and decided not to make soot pollution standards more stringent.

A report the nonpartisan watchdog group Accountable.US released Wednesday found federal agencies have issued 730 rules or rule proposals since Feb. 11, when the World Health Organization released the name of the virus.

Virus rules

Two percent of those rules or proposals directly relate to COVID-19, the disease the virus causes, according to Accountable.US, which said two of the 229 rules and proposed rules EPA has released since Feb. 11 explicitly related to the virus.

“Instead of using every government tool to fight the pandemic, the Trump administration was quietly working on sweeping regulatory changes that benefit industry, hurt consumers, and have virtually nothing to do with the fight against the coronavirus,” Kyle Herrig, president of Accountable.US, said in a statement.

Under the Congressional Review Act, which allows Congress to repeal executive branch regulations put in place during the previous 60 legislative days, Republican lawmakers in 2017 sought to undo Obama-era regulations, and Democrats could use it in early 2021 if they win control of the Senate, the House and the White House.

While the virus has muddled Congress’ schedule, rules issued after May 19 could be subject to the CRA in the next Congress, according to George Washington University’s Regulatory Studies Center.

The Institute for Policy Integrity, a project at New York University’s law school, has tracked the outcomes of lawsuits that involved federal agencies under President Donald Trump. The government doesn’t have a strong record, according to its tally.

Cabinet agencies have won six of 84 lawsuits without having to withdraw their case, according to the group’s figures. In environmental cases specifically, the government has won two of 45 cases.

The EPA policy applies retroactively to March 13, the day the Trump administration declared the coronavirus outbreak a national emergency.

After Sen. Dianne Feinstein, D-Calif., and Reps. Katie Porter, D-Calif., and Mike Quigley, D-Ill., questioned the policy, EPA Administrator Andrew Wheeler wrote to all members of Congress.

“The policy says that 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,” he wrote.

Filed in federal court in Manhattan, the case is State of New York et al. v. U.S. Environmental Protection Agency et al.

The plaintiffs are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia.

The Natural Resources Defense Council sued EPA in the same court, the U.S. District Court for the Southern District of New York, in April over the same policy.