Feds Sued for Lifting Pollution Controls During Crisis

Critics say the government’s temporary nonenforcement policy threatens the health of people living in communities near power plants, factories and other sources of pollution.

A coal-fired plant in Winfield, W.Va, is seen from a nearby apartment complex in August 2018. (AP Photo/John Raby, File)

MANHATTAN (CN) — Seeking to thwart a free pass from the Trump administration for fossil fuel and chemical companies to pollute, conservation groups sued the Environmental Protection Agency on Thursday after it suspended enforcement of pollution monitoring in response to the coronavirus pandemic.

On March 26, the EPA published a memorandum that abruptly waived enforcement on a range of legally mandated public health and environmental protections, saying industries could face difficulties complying with them during the Covid-19 crisis. 

Under the temporary policy, the agency is waiving fines or other civil penalties for companies that stop monitoring, reporting and certifying their compliance with limits on air and water pollution if they assert a pandemic-related constraint. 

The policy allows companies to document their own noncompliance and the reason for it internally and tell the EPA about it later, if asked by the agency.

The Natural Resources Defense Council, or NRDC, and 14 other environmental advocacy groups filed a lawsuit Thursday in Manhattan federal court, claiming the government’s rollback presents an immediate risk that industrial facilities will stop monitoring and reporting for compliance with pollution limits – including for hazardous air pollutants and toxic chemical releases – with no contemporaneous notice to the regulating agency or to the public.

Giving industries permission to ignore regulations will lead to diminished safety for both workers and neighboring communities that live with the daily threat of chemical leaks and spills, the environmental groups allege.

“EPA’s new non-enforcement policy presents a huge threat to downstream, downwind, and fenceline communities around the country. Environmental monitoring and reporting are essential for those communities,” the 20-page complaint states. “Without timely information about air and water emissions, people are unable to take steps to protect themselves from pollution or pursue appropriate enforcement against polluters.”

The groups, represented by lead attorney Michelle Wu from the NRDC’s New York office, say the broad nonenforcement policy covers the EPA’s regulation of air and water pollution, chemical releases, oil spills, hazardous waste storage, leaking tanks and pipelines.

When he announced the policy last month, EPA Administrator Andrew Wheeler said the open-ended waiver was temporary and retroactive to March 13.

“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,” Wheeler said. “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.”

The agency said the temporary policy does not provide leniency for intentional criminal violations of law. 

Gina McCarthy, president and CEO of the NRDC and former EPA chief under the Obama administration, said the policy benefits “polluters and polluters alone — and all at our expense.”

“Now more than ever, we need EPA to do its job and protect our health—not put it at greater risk,” McCarthy said in a statement Thursday. “During a pandemic that is hitting people with heart and lung disease the hardest, it is senseless to push forward a ‘don’t ask, don’t tell’ policy for polluters that will allow them to make our air and water dirtier without warning or repercussion.”

Steve Taylor, program director for co-plaintiff Coming Clean, a national environmental health collaborative fighting toxic contamination,  said that a failure to monitor toxic emissions or repair leaks and malfunctioning equipment will lead to more pollution at a time when respiratory health is critical because of the coronavirus outbreak.

“There is nothing ‘routine’ about a blanket invitation to virtually every polluting facility or hazardous site in the country to suspend essential health and safety practices,” Taylor said in statement

Wes Gillingham, associate director of Catskill Mountainkeeper, another plaintiff in the case, said the EPA’s policy shirks its responsibility to protect American communities and the environment.

“When our country is struggling with many uncertainties, the EPA wants to allow polluters to spew toxins into our air and water without reporting it,” Gillingham wrote. “This action applies to all the worst polluters: power plants, compressor stations, mines, well pads, chemical plants, and almost all sources of pollution. The policies coming out of the EPA under this administration are not just a joke, they are downright dangerous, and now we have to force them to do their job.” 

An EPA spokesperson declined to comment on the pending litigation Thursday but said policy at issue is “a lawful and proper exercise of the agency’s authority under extraordinary circumstances.”

“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,” the spokesperson added. “This is not a nationwide waiver of environmental rules.”

Before going to court, the NRDC filed a petition with the EPA on April 1 seeking an emergency order requiring any entity that stops monitoring and reporting for pollution in response to the Covid-19 pandemic to provide written notice and justification to the EPA, which the agency would then make available to the public.

In an April 9 letter to the EPA, California Attorney General Xavier Becerra supported the petition’s request for immediate public disclosure when regulated entities fail to comply with environmental obligations in reliance on the nonenforcement policy.

A week later, 14 other attorneys general called on the EPA to rescind the policy, arguing that without any requirement for industry to disclose monitoring and reporting violations, “fence line communities could be exposed to harmful pollution without adequate warning.”

The nonenforcement policy was the just latest, and one of the most sweeping, regulatory rollbacks by the EPA, which has sought to weaken dozens of regulations as part of President Donald Trump’s draining of rules that his administration sees as unfriendly to business. 

Since 2017, the Trump administration has stacked the agency with former industry lobbyists and lawyers for chemical manufacturers, fossil fuel producers and other corporate clients.

Civil and criminal enforcement of polluters under the administration has fallen sharply.

Earlier this week, Wheeler made clear that new scientific evidence linking industrial soot emissions to novel coronavirus fatalities does not warrant a change to toughen a regulation on the air contaminant otherwise known to cause heart attacks and lung disease. 

“The U.S. has made incredible strides in reducing particulate matter concentrations across the nation,” Wheeler said in a statement. “Based on review of the scientific literature and recommendation from our independent science advisors, we are proposing to retain existing PM standards which will ensure the continued protection of both public health and the environment.”

Prior to leading Trump’s EPA, Wheeler spent much of his career as a lobbyist on behalf of coal companies. 

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