Contact: Charity R. Clark, Chief of Staff, 802-828-3171
Attorney General T.J. Donovan today joined a coalition of attorneys general in filing a lawsuit against the Environmental Protection Agency (EPA) challenging its policy under which the EPA “will not” enforce bedrock monitoring and reporting obligations under a wide range of federal environmental laws due to the coronavirus (COVID-19) pandemic. The coalition argues that the EPA’s policy, called the “Temporary Policy on COVID-19 Implications for the EPA’s Enforcement and Compliance Assurance Program,” is overly broad, lacks transparency and accountability, and will result in higher pollution emissions by industry and corresponding impacts on public health and the environment.
“We must remain vigilant in protecting our environment,” said Attorney General Donovan. “The EPA should do its job. If not, Vermont will continue to protect clean air and clean water.”
On March 26, 2020, the EPA issued its temporary, non-enforcement policy, which applies retroactively to March 13, 2020, and has no end date. The EPA states in the policy that it does not intend to take enforcement action against companies that, for example, violate existing reporting and monitoring requirements for laws such as the Clean Air, Clean Water, and Safe Drinking Water Acts, provided that companies link COVID-19 to their non-compliance. The policy also makes it optional for parties to report non-compliance to the EPA, and state and local agencies.
While recognizing the immense challenges posed by the COVID-19 pandemic, the coalition argues that it was arbitrary and capricious for the EPA to adopt the “across the board” non-enforcement policy without considering whether it will worsen harms to public health. Increased air pollution and the failure to report excess air pollution could pose significant added dangers to individuals with existing respiratory illnesses (e.g., asthma). This circumstance is made more troubling by the EPA’s statement in the policy that it may waive enforcement even in situations where a polluter’s non-compliance presents an imminent threat to public health or the environment. Additionally, the coalition contends that the EPA lacks legal authority to effectively waive critical monitoring and reporting obligations that inform regulators and the general public of pollution hazards.
Today’s lawsuit follows a letter issued on April 15, 2020, by Attorney General Donovan and a coalition of attorneys general to the EPA urging that the temporary, non-enforcement policy be rescinded. The EPA has neither responded to the letter nor taken any of the actions requested by the coalition.
In filing today’s lawsuit, Attorney General Donovan joins the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, and Virginia.