BALTIMORE, MD—Maryland Attorney General Brian E. Frosh this week joined a coalition of nine attorneys general in filing a lawsuit against the Environmental Protection Agency challenging its policy of not enforcing bedrock monitoring and reporting obligations under a wide range of federal environmental laws due to the COVID-19 pandemic.
The coalition argues that EPA’s policy, the “Temporary Policy on COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” (non-enforcement policy), is overly broad, lacks transparency, and will negatively impact public health and the environment.
“EPA is inviting industries to pollute our air and water. It is never a good time to back away from enforcing laws that protect the environment and public health. Doing so in the midst of this pandemic is particularly reckless,” said Attorney General Frosh.
On March 26, 2020, EPA issued the non-enforcement policy, which applies retroactively to March 13, and has no end date. The policy states that EPA will not take civil enforcement action against companies that violate existing reporting and monitoring requirements under federal environmental laws like the Clean Air Act and Clean Water Act, provided that the companies later link COVID-19 to their non-compliance. The policy also makes it optional for parties to report their non-compliance to EPA, and to state and local agencies.
In the lawsuit, the coalition contends that EPA lacks legal authority to waive monitoring and reporting obligations that inform regulators and the public of pollution hazards. The lawsuit also alleges that EPA failed to consider the adverse impacts on public health that the policy will have from withholding public notice of pollution levels during the COVID-19 pandemic.
On April 15, a coalition of state attorneys general, including Attorney General Frosh, submitted a letter to EPA Administrator Andrew Wheeler urging the agency to withdraw the non-enforcement policy in favor of guidance that would protect communities from pollution during this public health crisis. EPA has neither responded to the letter nor taken any of the actions requested by the attorneys general.
Joining Attorney General Frosh in the lawsuit, filed today in the United States District Court for the Southern District of New York, are the attorneys general of California, Illinois, Michigan, Minnesota, New York, Oregon, Vermont, and Virginia.