Attorney General Becerra Sues Trump Administration Over Non-Compliance Policy That Allows EPA to Give Industry Polluters a Free Pass

SACRAMENTO – California Attorney General Xavier Becerra today, as part of a coalition of nine attorneys general, filed a lawsuit challenging the Environmental Protection Agency’s (EPA) new policy allowing it to curtail civil enforcement of numerous environmental regulations and statutes during the coronavirus public health emergency. At a time when the coronavirus pandemic is attacking people’s respiratory and cardiovascular systems, this sweeping policy creates a presumption of nonenforcement that increases the combined risk of industrial pollution and coronavirus complications for vulnerable communities. In the lawsuit, the coalition argues that the non-compliance policy violates the Administrative Procedure Act (APA).

“The Trump Administration is trying to use the current public health crisis to sweep environmental violations under the rug,” said Attorney General Becerra. “What’s worse, the Administration is doing so even as evidence grows that communities exposed to air pollution are at increased risk from coronavirus. Today, we’re pushing back against the EPA’s regressive policy. This is 2020, not 1920.”

Assistant Administrator for Enforcement and Compliance Assurance at the EPA Susan Bodine signed a memo on March 26, 2020, announcing a temporary policy by which the EPA would relax enforcement of violations of environmental statutes and regulations during the coronavirus pandemic. The policy was met with immediate and widespread criticism from members of Congress, enforcement watchdogs, community leaders and environmental organizations. Attorney General Becerra expressed serious concerns with the policy in a letter to Assistant Administrator Bodine on April 9, 2020. In the letter, he highlighted the danger of reducing or ceasing environmental enforcement while a pandemic is attacking people’s respiratory systems. According to the United States Centers for Disease Control and Prevention, COVID-19 presents a significantly higher risk to people with long-term exposure to industrial pollution. 

In today’s lawsuit, the multistate coalition argues that EPA’s non-compliance policy violates the Administrative Procedure Act because it:

• Constitutes a legislative rule requiring compliance with the APA’s notice and comment procedures or the invocation of the “good cause” exception to notice and comment, neither of which EPA did here;
• Fails to demonstrate the need for the sweeping change to EPA’s normal enforcement policies; and
• Exceeds EPA’s authority by ignoring and failing to follow processes provided in the Clean Air Act and elsewhere for invoking emergency powers.

Attorney General Becerra joins the attorneys general of Illinois, Maryland, Michigan, Minnesota, New York, Oregon, Vermont, and Virginia, in filing the lawsuit.

A copy of the lawsuit can be found here.