Bloomberg Law
June 9, 2020, 3:55 PM

New York, Others Move to Block Pandemic-Era EPA Enforcement Plan

Ellen M. Gilmer
Ellen M. Gilmer

Nine states are urging a New York federal court to block the EPA from using a light touch on environmental enforcement during the coronavirus pandemic.

New York, California, and others on Monday asked the U.S. District Court for the Southern District of New York to issue a preliminary injunction barring the agency’s “enforcement discretion” policy.

Leaving the approach in place while the states and the Environmental Protection Agency debate its legality in court will cause irreversible harm, the states said.

The states, in a brief, said they’re likely to succeed because “the policy exceeds EPA’s statutory authority and is arbitrary and capricious.”

“However, if the policy remains in effect while this litigation is pending, the increased pollution it incentivizes will irreparably harm the States before the policy can be set aside,” they added.

The states involved in the case are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia.

At issue is the EPA’s March announcement that companies won’t face penalties if coronavirus-related conditions cause them to fall short of certain requirements to report and monitor pollution.

The agency has defended the policy as a commonsense accommodation during the pandemic. Critics say the EPA is attempting to use Covid-19 as an excuse for offering favors to industry.

“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,” New York Attorney General Letitia James (D) said in a statement. “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 didn’t immediately provide comment Tuesday morning but has previously stressed that it decides the validity of companies’ claims that they can’t meet the requirements.

An environmental coalition has separately pushed the New York district court to force the EPA to answer a petition asking it to reveal which companies have taken advantage of the temporary relaxed enforcement policy.

The case is: New York v. EPA, S.D.N.Y., No. 1:20-cv-03714, motion filed 6/8/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Rebecca Baker at