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Law360 (April 16, 2020, 6:52 PM EDT) -- A coalition of environmental groups sued the U.S. Environmental Protection Agency in New York federal court Thursday over its decision to relax a policy requiring companies to report their compliance with pollution standards during the coronavirus outbreak, saying the lower standards would contribute to the spread of the disease.
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 last month would 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.
"Environmental monitoring and reporting are essential for those communities. 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 said in the complaint.
An agency spokesperson on Thursday said the policy represents a proper exercise of the EPA's authority in the midst of the public health crisis.
Jared Knicley of the Natural Resources Defense Council told Law360 that some of the regions that are most vulnerable to the effects of increased pollution are the Rust Belt and states like Texas and Louisiana where the petrochemical industry is strong. Knicley also said that by failing to enforce the pollution standards, the EPA essentially instituted a "don't ask don't tell" policy for the companies where they can freely pollute without fear of repercussions.
The groups also said the policy would help exacerbate the spread and impact of the COVID-19 outbreak that has already infected more than 600,000 Americans and killed more than 33,000, citing a recent study from the Harvard School of Public Health that shows a correlation between increased air pollution and a higher COVID-19 death rate.
At the beginning of April, the groups filed a petition seeking to have an interim final rule published that would require any company that stops reporting pollution numbers to tell the EPA in a public notice in order to keep people informed. By failing to respond, they said the EPA violated the Administrative Procedure Act, which requires a timely response to any potential rules presented.
"Every additional day of delay increases the risk of undisclosed violations of environmental laws by companies relying on EPA's non-enforcement policy," the groups said. " Late disclosure of such violations — six months or a year down the road — is of no help; the harm will be done."
The groups are asking for a declaratory judgment that says the EPA was wrong in failing to respond to its petition and an order that would force the EPA to respond within five days of the judge's decision.
On Wednesday, New York Attorney General Letitia James and 13 other attorneys general sent a letter to the EPA challenging its decision to stop enforcing pollution laws, saying that state governments will hold companies accountable for pollution compliance if the EPA does not.
"Although it is appropriate for EPA to consider whether safeguards against the coronavirus impact the ability of industry to comply, the agency cannot — in the midst of a public health crisis — lose sight of its mission to protect public health and the environment," the attorneys general said.
A representative for the EPA told Law360 in an emailed statement that the agency doesn't comment on pending litigation, however she did say that the policy is a proper use of the agency's authority during the COVID-19 crisis.
"Contrary to reporting, EPA's enforcement authority and responsibility remains active and the temporary guidance does not allow any increase in emissions," the EPA representative said. "This is not a nationwide waiver of environmental rules. We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public."
The groups are represented by Michelle Wu of the Natural Resources Defense Council and Allison Zieve of the Public Citizen Litigation Group.
Counsel information for the EPA was not immediately available Thursday.
The case is Natural Resources Defense Council et al. v. Assistant Administrator Susan Parker Bodine et al., case number 1:20-cv-03058, in the U.S. District Court for the Southern District of New York.
--Editing by Bruce Goldman.
Correction: A previous version of this article referred to the EPA policy as a rule. The error has been corrected.
For a reprint of this article, please contact reprints@law360.com.
