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Law360 (May 13, 2020, 8:33 PM EDT) -- Nine states' attorneys general sued the U.S. Environmental Protection Agency on Wednesday in New York federal court over its new policy curtailing enforcement of clean air and water rules during the COVID-19 pandemic, saying it encourages industrial pollution as people with respiratory and cardiovascular problems are getting sick.
New York Attorney General Letitia James led the coalition of nine AGs in filing the complaint that claims the Trump administration's new policy is exploiting the coronavirus crisis by letting companies violate the Clean Air, Clean Water and Safe Drinking Water acts if they can claim their noncompliance is linked to business troubles caused by the virus.
"The Trump administration cannot give industries the green light to ignore critical environmental and public health laws, especially during a public health crisis," James said in a statement. "The EPA's non-enforcement policy puts our already damaged public health in danger by freely allowing pollution from big corporations."
The complaint asserts that the EPA has acted beyond the scope of its authority, and that the "arbitrary and capricious" nonenforcement policy is an abdication of EPA's statutory responsibilities and was promulgated without notice and comment.
The AGs' suit responds to the EPA's March 26 decision to temporarily suspend some compliance obligations for entities affected by the coronavirus crisis.
Susan Bodine, who leads the EPA's Office of Enforcement and Compliance Assurance, issued the new policy to the agency's state, tribal and local government partners outlining the agency's approach to enforcing regulations when entities find themselves unable to comply due to COVID-19-related circumstances such as personnel shortages or travel restrictions.
The compliance obligations are divided into tiers, with significant leeway given to businesses that show they can't meet routine compliance monitoring and reporting requirements. Meanwhile, according to Bodine, those at risk of allowing discharges or emissions that could damage human health and the environment will be scrutinized more closely. Once the coronavirus crisis has passed, she said, the policy will be rescinded.
Environmental groups on April 16 responded to the new policy with a suit of their own, claiming in New York federal court that the relaxed policy's lower standards will contribute to the spread of the virus.
The groups, consisting of 14 environmental justice, public health and public interest organizations led by the Natural Resources Defense Council, said the EPA's decision will put people who live near industrial facilities at risk by both reducing the amount of information available to the public and potentially increasing the amount of pollution.
Wednesday's suit was lodged by the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia and Vermont, as well as New York.
EPA spokesperson Corry Schiermeyer told Law360 in an email Wednesday that the agency can't comment on specific litigation, but noted that Bodine wrote letters to the attorneys general that addressed their concerns.
"I am sorry that you have been misled by inaccurate characterizations of EPA's policy on 'COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program' (Temporary Policy)," Bodine wrote Wednesday. "I urge you to read the policy for yourself, as a lawyer. Please be assured that EPA continues to enforce environmental laws and protect human health and the environment nationwide during these unprecedented times."
Schiermeyer added that the environmental agencies of each of the nine states represented by the AGs who filed the lawsuit have themselves adopted enforcement discretion policies related to the COVID-19 public health emergency.
"As we've stated previously, contrary to reporting, EPA's enforcement authority and responsibility remains active and the temporary guidance does not allow any increase in emissions," Schiermeyer said. "This is not a nationwide waiver of environmental rules."
The nine AGs are represented by Michael J. Myers, Meredith Lee-Clark, Samantha Liskow, Brian Lusignan, Patrick Omilian, Benjamin Cole, Anthony Dvarskas, Lemuel M. Srolovic and Matthew Colangelo under the New York attorney general's office.
Counsel information for the EPA was not available Wednesday.
The case is State of New York et al. v. U.S. Environmental Protection Agency et al., case number 1:20-cv-03714, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Adrian Cruz and Juan Carlos Rodriguez. Editing by Orlando Lorenzo.
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