States Issue Injunction Against EPA Ruling
At the beginning of the month, nine states issued a brief to the U.S. District Court for the Southern District of New York, requesting a preliminary injunction that would halt the Environmental Protection Agency’s enforcement discretion policy.
The nine states include California, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, Virginia and Vermont.
Enforcement Discretion Policy
In March, the EPA announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic.
"EPA is committed to protecting human health and the environment, but recognizes 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," said EPA Administrator Andrew Wheeler in a statement.
"This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment."
According to the Agency’s news release, the temporary enforcement discretion policy applies to civil violations and addresses different categories of noncompliance differently. As an example, the EPA referenced that it would not seek penalties for noncompliance with routine monitoring and reporting obligations that are the result of the COVID-19 pandemic, however, does expect operators of public water systems to continue to ensure safe drinking water supplies.
Overall, the temporary policy aims to ease regulated facilities “where reasonably practical” and wants to return to compliance as soon as possible. While the policy went into effect on March 13, the Agency hasn’t provided a date when the policy will expire.
Facilities that wish to be eligible for the discretion were asked to document all decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.
The policy doesn’t provide leniency for intentional criminal violations of law, nor does it apply to activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments.
In wake of the temporary policy, in May, attorney generals representing the nine states filed a lawsuit against the EPA for relaxing company compliance and monitoring requirements. The suit argues that the policy is too broad and not transparent.
“The Trump Administration is trying to use the current public health crisis to sweep environmental violations under the rug,” California Attorney General Xavier Becerra said in a release announcing the suit. “What’s worse, the Administration is doing so even as evidence grows that communities exposed to air pollution are at increased risk from coronavirus.”
New York Attorney General Letitia James—the attorney leading the coalition of states’ case—added that in issuing a broad and open-ended policy, polluters are given too much leeway verses authorized law enforced discretion.
“The Trump Administration cannot give industries the green light to ignore critical environmental and public health laws, especially during a public health crisis,” said James. “The EPA’s non-enforcement policy puts our already damaged public health in danger by freely allowing pollution from big corporations. There has never been a more important time to prioritize the health of our communities.”
Not the only entities fighting the discretion policy, the same month the Natural Resources Defense Council and 14 other environmental organizations filed a lawsuit against the EPA as well.
The NRDC and environmental organizations mirror the states concerns, pointing out that the policy was announced without notice or community consultation and applies to every industry in the country: chemical manufacturing, oil and gas extraction, coal-fired power plants, refineries, mining and smelting, factory farms and every other federally regulated source of pollution.
Additionally, the policy threatens environmental monitoring, could potentially distort future rulemakings, and further burdens communities with greater air pollution to be more vulnerable to COVID-19, among other points in the suit.
On June 8, the coalition issued a request for a preliminary injunction arguing that an injunction is warranted should the policy remain in effect while litigation is pending as increased pollution incentivizes will irreparably harm the states before the policy can be set aside.
“EPA issued the policy without considering its resulting impacts on public health despite EPA’s longstanding recognition that monitoring and reporting requirements are critical not only to determining industry compliance with pollution limits but also deterring facilities from violating those limits,” the request said.
An EPA spokesperson has declined to comment to reporters on the ongoing litigations.
While both cases against the EPA are pending, they’re not the only ones opened in recent months. In April, the NRDC, along with other players, filed a lawsuit against the EPA and the Army Corps of Engineers over the Navigable Waters Protection Rule.
Published on April 21, the rule intends to redefine navigable waters—currently defined in the Clean Water Act—and plans to go into effect on June 22. The rule was reportedly created as to fulfill Executive Order 13788 Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule and Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.
Through EO 13868, the Trump administration announced that it was finalizing the CWA to remove federal environmental protections from ephemeral bodies of water in January. The revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.
The rollback affected nearly 95 environmental rules.
In June, the EPA announced that the agency had issued a final rule that will both promote the construction of energy-based infrastructure projects and protect waterways across the nation.
According to Wheeler, the final rule moves to “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.” With the updated ruling, States are now no longer able to use the law to object to projects “under the auspices of climate change.”
Although the ruling doesn’t have a case pending against it yet, many Democrats and environmental groups oppose the ruling, as the original Section 401 of the Clean Water Act was critical in protecting state drinking water quality. In addition, the final rule will also burden states with limited resources in conducting project evaluations in reduced time restrictions.
Some believe that the EPA will have a difficult time should the ruling be legally challenged, as the Supreme Court explicitly affirmed states’ authority to impose conditions on projects based on state law in 1994.
Most recently, President Donald J. Trump signed Executive Order, “EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”
While the order looks to accelerate transportation infrastructure and infrastructure, energy, environmental and natural resources projects on federal lands as well, it does so by directing agencies to waive requirements imposed by laws such as the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, among others.
In moving forward with the change, only the Council on Environmental Quality, a division of the Executive Office of the President, will be able to approve “alternative arrangements” for each federal agency when emergency circumstances should bypass environmental regulations.
While Trump’s order gives agencies 30 days to provide a summary report of projects that have been expedited, some believe this order will also be challenged in court in wake of the criticism received by many environmentalists and Democratic lawmakers.