WASHINGTON, April 21, 2020 — The Center for Biological Diversity filed a notice today of its intent to sue the Trump administration over the Environmental Protection Agency’s decision last month to suspend monitoring and reporting requirements for major pollution during the COVID-19 pandemic. In particular today’s notice urges the agency to ensure that endangered and threatened species, such as salmon, are not harmed by the suspension.
The EPA’s policy, set forth in a March 26 memorandum, suspends monitoring, reporting and enforcement under several key environmental laws, including the Clean Water Act, Clean Air Act, Safe Drinking Water Act, Resource Conservation and Recovery Act, and Emergency Planning and Community Right‐to‐Know Act.
“While people should certainly not be put at undue risk, the Trump administration must not be allowed to use this pandemic to give polluters free rein to foul our air and water and hurt wildlife,” said Jared Margolis, an attorney at the Center for Biological Diversity. “Protecting our environment right now is crucial, and regulators must take reasonable measures to ensure that the response to COVID-19 does not jeopardize species at grave risk of extinction.”
The EPA’s policy allows oil and gas companies, along with other polluting industries, total discretion to determine whether they will comply with monitoring and reporting requirements. The agency has not indicated when the policy would be rescinded.
“The potential for polluters to exploit the current epidemic under the EPA’s non-enforcement policy makes this dangerous situation even worse,” Margolis said. “Clean air and water are essential for people and wildlife, and the EPA has failed to ensure that it will take reasonable measures to protect imperiled species from its COVID-19 response.”
The Endangered Species Act requires that all federal agencies ensure, in consultation with government experts, that their actions will not jeopardize the continued existence of endangered and threatened species.
When necessary “emergency consultations” can be pursued that require agencies to seek advice from the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service on minimizing the effects of an emergency response. The agencies must then undertake a complete analysis once the crisis is over to document the impacts to listed species and provide for remediation measures necessary to address harm resulting from the emergency.
While other agencies, such as FEMA, have used this emergency process to ensure that the response to COVID-19 does not jeopardize species, there is no evidence that EPA has complied with any of these means of protecting listed species. The agency has failed to explain how it will ensure that its suspension of monitoring, reporting and enforcement will not result in adverse impacts to many species affected by EPA-regulated activities.
The Center’s notice today provides several examples of activities that require monitoring and reporting to protect listed species, such as Clean Water Act permits that can affect endangered sockeye salmon, steelhead and shortnose sturgeon, as well as threatened Chinook salmon and bull trout. Suspension of monitoring, reporting and enforcement creates an immediate and serious risk to these species.
Additionally, since the EPA does not expect regulated entities even to “catch up” with certain missed monitoring or reporting, it will have no way of knowing whether its policy resulted in adverse impacts to listed species and their habitat, as the Endangered Species Act requires.
“The Endangered Species Act provides mechanisms for ensuring species are protected during emergencies, but the EPA failed to even comply with basic procedures to prevent harm,” said Margolis. “What we are asking for is not onerous and will not put people at risk, but it is necessary to ensure the continued existence of many species.”
The Center filed a Freedom of Information Act request April 3 for all communications with the American Petroleum Institute and others that resulted in the EPA’s March memorandum. On April 10 the agency refused to provide any such documents on the baseless grounds that the request is “overly broad.”