Attorney General James Urges Court to Halt Trump EPA’s Non-Enforcement of Federal Environmental and Public Health Laws

AG James: Non-Enforcement of Environmental
Requirements are Felt Most by Communities of Color

NEW YORK – Attorney General Letitia James, leading a coalition of nine states, is urging a U.S. District Court to halt the Trump Environmental Protection Agency (EPA) policy that has effectively waived industry compliance with pollution monitoring and reporting — cornerstone requirements of federal environmental and public health laws — due to the coronavirus disease 2019 (COVID-19). This action is a follow-on to a lawsuit that the coalition brought against the non-enforcement policy on May 13 for being overly broad, lacking transparency and accountability, and likely resulting in higher pollution emissions by industry and corresponding impacts on public health and the environment. 

“For many Americans — particularly those in low-income communities of color — the enforcement of our nation’s pollution laws is literally a matter of life and death,” said Attorney General James. “But right when the health of our communities is suffering the most, the Trump EPA is turning its back on them, greenlighting industry to pollute more and care less. The EPA’s non-enforcement policy is ill-founded, illogical, and illegal, and I’m urging the court to protect New Yorkers by putting a halt to it.”

In a preliminary injunction motion filed with the U.S. District Court for the Southern District of New York yesterday, the coalition argues that a halt to the EPA non-enforcement policy is necessary because — if the policy remains in effect while their lawsuit is pending — the increased pollution it incentivizes will have irreparably harmed the coalition states and their residents before the court overturns the policy.

On March 26, the EPA issued the non-enforcement policy, which applies retroactively to March 13th, and has no end date. The EPA states in the policy that it does not intend to take enforcement action against companies that violate existing reporting and monitoring requirements for laws such as the Clean Air, Clean Water, and Safe Drinking Water Acts, provided that the companies link COVID-19 to their non-compliance. The policy also makes it optional for parties to report non-compliance to the EPA, and to state and local agencies.

The coalition recognizes the immense challenges posed by the COVID-19 pandemic and its response. However, 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. Further, as a number of states have demonstrated themselves, the agency could have pursued a reasonable policy that provides necessary and appropriate flexibility to businesses without waiving requirements necessary to protect public health and the environment.

The coalition’s motion argues that, in adopting the non-enforcement policy, the EPA failed to consider the potential impacts that increased pollution from industry’s noncompliance will have on the public, generally, and on minority and low-income communities, specifically. For those living in these communities, often located at industrial “fencelines,” the risks of harm from increased pollution are usually much greater than for the general public. In fact, evidence suggests that environmental enforcement is already less frequent in these communities. Importantly, the EPA has adopted the non-enforcement policy at a time when low-income and minority communities are also suffering disproportionately from COVID-19 and when evidence is beginning to emerge linking air pollution to harms from the virus.

Joining Attorney General James in the preliminary injunction motion are the attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia, and Vermont.

This matter is being handled by the Environmental Protection Bureau of the New York Attorney General’s Office and is led by Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers, Assistant Attorneys General Meredith Lee-Clark, Samantha Liskow, Brian Lusignan, and Patrick Omilian, Project Attorney Benjamin Cole, and Chief Scientist Anthony Dvarskas, under the supervision of Bureau Chief Lemuel M. Srolovic and Chief Counsel for Federal Initiatives Matthew Colangelo. The Environmental Protection Bureau is part of the Division of Social Justice, led by Chief Deputy Attorney General Meghan Faux, all under the oversight of First Deputy Attorney General Jennifer Levy.