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Groups Sue EPA Over Free Pass for Polluters Amid Pandemic

WASHINGTON – Public Citizen, the Natural Resources Defense Council (NRDC) and partners today sued the U.S. Environmental Protection Agency (EPA) over the agency’s recently announced non-enforcement policy, which allows companies to use COVID-19 as a reason to stop monitoring and reporting pollution—without notifying the public.

The policy poses a huge risk to public health, especially to downstream, downwind, and already overburdened communities—who, without timely information about air and water emissions, cannot protect themselves from being harmed, the lawsuit states. It applies to every industry in the country—including chemical manufacturing, oil and gas extraction, coal-fired power plants, refineries, mining and smelting, and factory farms—and to virtually all other sources of pollution.

“During this pandemic crisis, the EPA has moved swiftly to issue new rules to lower environmental protections, including by issuing a nonenforcement policy that allows industry to violate pollution standards with impunity,” said Robert Weissman, President of Public Citizen. “EPA’s failure to swiftly issue a rule requiring public notice of which facilities are accepting the agency’s invitation to use the crisis as an opportunity to opt out of compliance with environmental standards is unreasonable and endangers the public.”

“Now more than ever, we need EPA to do its job and protect our health—not put it at greater risk,” said Gina McCarthy, president and CEO of NRDC. “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. This policy benefits polluters and polluters alone—and all at our expense.”

Public Citizen, NRDC and a coalition of community-based climate and environmental justice and public interest groups petitioned the EPA on April 1, demanding the agency issue an emergency rule requiring that companies taking advantage of the policy publicly disclose, in writing, when they stop monitoring or reporting their air and water emissions. That would then be disclosed to the public.

The agency ignored that request, prompting today’s legal action asking a federal court to order the EPA to respond to the petition as soon as possible. The lawsuit was filed by Public Citizen, NRDC and a coalition of environmental, climate justice, and public interest advocacy groups in the United States District Court for the Southern District of New York.

“For far too long, chemical, oil, and energy companies have been allowed to risk the safety, pollute the air and water, and damage the health and wellbeing of communities of color, Indigenous communities, and low-income communities, who have been subject to these cumulative impacts far more than other communities,” said Michele Roberts, national Co-Coordinator of the Environmental Justice Health Alliance for Chemical Policy Reform. “Now this administration is using a pandemic that is also disproportionately harming our people as an excuse to build on that fundamental injustice and environmental genocide by giving a free pass to polluters. We will not let this outrageous order stand.”

“At a time when essential refinery workers are required to show up to work in the midst of a dangerous global pandemic, it is appalling that EPA is walking away from its duty to enforce the country’s environmental laws,” said José Bravo, Executive Director of the Just Transition Alliance. “These environmental regulations are in place not just to protect the public, but for the safety of those working closest to dangerous chemicals day in and day out, and permission to ignore them will lead to decreased safety for both workers and nearby fenceline communities. It is unconscionable for this administration to use this public health crisis to do the bidding of industry and perpetuate environmental racism when people of color and poor people in our communities are disproportionately dying from COVID-19.”

In its non-enforcement policy issued two weeks ago, the EPA asks—but does not require—companies to inform the agency if they stop monitoring pollution for COVID-19-related reasons. Environmental monitoring and reporting are essential for at-risk communities around the country.

People need accurate and timely information about their environment in order to protect themselves from pollution. If people cannot obtain timely information about air and water emissions, they will be unable to protect themselves from pollution—or pursue appropriate enforcement against polluters, the lawsuit says.

Monitoring and reporting also serve as a crucial deterrent. Facilities are more likely to stay within their pollution limits if they know someone is watching.

The EPA’s policy is especially dangerous in light of recent research showing that increased air pollution causes a significant increase in the COVID-19 death rate. Communities burdened by greater air pollution are more vulnerable to COVID-19.

The harms from EPA’s policy will be borne disproportionately by people of color and low-income people, who are more likely to live near industrial facilities and other sources of pollution, and who are also disproportionately harmed by COVID-19, the lawsuit states.

“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,” said Steve Taylor, Program Director for the national environmental health collaborative Coming Clean. “Failure to monitor toxic emissions, or to detect and repair leaks and malfunctioning equipment, will lead to more pollution exactly when respiratory health is critical due to COVID-19, and could even lead to chemical disasters.”

“The EPA was established to protect our communities and environment, but today they are shirking their responsibility,” said Wes Gillingham, Associate Director of Catskill Mountainkeeper. “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. 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.”

“EPA’s actions are extremely dangerous for communities living on the fenceline of refineries, which are at disproportionate risk of exposure to chemical spills and pollution from nearby facilities,” said Yvette Arellano, Policy Research & Grassroots Advocate for Texas Environmental Justice Advocacy Services (TEJAS). “When Hurricane Harvey struck our community in Houston, Texas, residents felt the immediate impact of not knowing which chemicals and pollution were spewing from the industrial facilities surrounding our homes. These chemicals make your eyes, skin, and lungs feel like they are on fire. With the next hurricane season fast approaching and in the midst of a global health crisis, EPA cannot relinquish its obligation to protect the environment and public health when we need those protections the most.”

“Giving polluters a sweeping pass on complying with regulations meant to protect people’s health and the environment is the wrong way to approach challenges presented by this crisis and creates unnecessary risks for fenceline communities and our drinking water sources,” said Lynn Thorp, Campaigns Director, Clean Water Action.

Other plaintiffs joining the complaint include the Center for Coalfield Justice, Flint Rising, Indigenous Environmental Network, Los Jardines Institute, Southeast Environmental Task Force, Water You Fighting For, and West Harlem Environmental Action, Inc.