Pending Snowstorm; No In-Person Activities Sat, Jan. 29. Law Library will be closed. More info

June 9, 2020
Contact: Tom Lalley

Coalition of State Attorneys General Ask Court to Halt Implementation of EPA's 'Nonenforcement Policy'

AGs’ motion for preliminary injunction warns that increased pollution triggered by the policy will irreparably harm states as litigation proceeds.

Washington, D.C. New York Attorney General Letitia James led a coalition of nine state attorneys general in filing a motion for preliminary injunction asking a district court to halt application of the Environmental Protection Agency’s (EPA) nonenforcement policy that allows operators of regulated entities such as oil refineries, chemical plants and power plants to cite the coronavirus pandemic as justification for failing to meet monitoring and reporting obligations under a range of environmental laws. The motion comes in litigation brought by the AGs in mid-May challenging the EPA’s policy, which applies retroactively to March 13 and will remain in effect indefinitely.
In their motion, the AGs warn that the increased pollution incentivized by the nonenforcement policy presents an immediate threat to their states, particularly because the policy “does not require companies to inform EPA of their noncompliance with regulatory or permit limits even where operations may create an ‘acute risk or an imminent threat to human health or the environment.’” Further, the AGs emphasize that the EPA has given no indication that it considered the policy’s “potential adverse impacts on public health, including increased pollution and a lack of information about pollution.”
“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 AG 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.”

“Trump’s EPA has announced that it will not do its job. We are asking the Court to order them back to work,” said Maryland Attorney General Brian Frosh. “Failing to enforce environmental regulations will harm public health, especially in those communities already disproportionately suffering from the effects of COVID-19.”
The AGs’ motion warns that the nonenforcement policy is “an abdication of EPA’s statutory duty to protect public health and the environment” and notes that the EPA is mandated by statute to prosecute violations of monitoring and reporting requirements, which the agency has acknowledged “are integral to protecting human health and the environment.” The AGs add that “the policy arguably goes a step further [...] because it also impairs the rights of citizens, including the States, to enforce environmental laws by reducing the availability of evidence used in citizen suits to enforce environmental laws.”
The EPA’s enforcement of environmental regulations had been declining well before it announced the nonenforcement policy. According to the EPA’s own annual report on enforcement results, the agency conducted only 10,320 inspections and evaluations during Fiscal Year (FY) 2019 — 43% below the annual average under the Obama administration. The EPA’s Enforcement and Compliance History Online database reveals similar lows in criminal and civil enforcement case initiations. The EPA initiated just 1,238 civil and 72 criminal enforcement cases during FY 2019 — 35% and 41% below the Obama-era annual average, respectively.
The attorneys general of California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia joined AG James in filing the motion.



About the State Energy & Environmental Impact Center
The State Energy & Environmental Impact Center (State Impact Center) is a non-partisan Center at the NYU School of Law that is dedicated to helping state attorneys general fight against regulatory rollbacks and advocate for clean energy, climate change, and environmental values and protections. For more information, visit our website