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States Challenge EPA’s COVID-19 Enforcement Policy

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by Patrick Paul, Chris Colyer, Michael Ford

In prior blogs (available here and here), we’ve reported on changes to certain federal and state environmental enforcement policies related to COVID-19.  In a nutshell, these policies essentially clarified the enforcement priorities of the U.S. Environmental Protection Agency (EPA) and certain other state agencies like the Arizona Department of Environmental Quality (ADEQ).  Not every state, however, followed EPA’s lead.  To the contrary, nine states — New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia have sued EPA, challenging EPA’s policy on enforcement discretion during the coronavirus pandemic, alleging in part that EPA exceeded its authority and abdicated its responsibilities by failing to follow Administrative Procedure Act notice and comment requirements.  More particularly, the complaint alleges that “by providing a broad, open-ended, upfront waiver of enforcement of monitoring and reporting obligations, EPA departed from longstanding policy through multiple Presidential administrations of issuing time-limited ‘no action’ assurances that were tailored to specific industries and circumstances.”

Anticipating that EPA will argue the District Court Complaint belongs at the Circuit Appellate level, these same states on May 26, 2020 filed a similar protective challenge in the United States Court of Appeals for the District of Columbia Circuit.  The plaintiff states have requested that the Temporary Policy be vacated and that EPA be enjoined from applying it.

Against this backdrop, those entities permitted or otherwise regulated by EPA or equivalent state agency\ies should be sensitive to the divergent thoughts on enforcement during COVID-19 and act accordingly.