Minnesota, other states sue EPA for 'blanket waiver' as nation fights pandemic

Minnesota and eight other states have sued the U.S. Environmental Protection Agency for curtailing enforcement of rules on air and water pollution during the COVID-19 pandemic, saying the pullback puts the public at even greater risk.

The states accuse the federal regulator of overstepping its authority when it created a "blanket waiver" in March that they say "gives regulated parties free rein to self-determine when compliance with federal environmental laws is not practical because of COVID-19."

That could tempt companies to stop reporting chemical spills or refrain from tracking emissions of hazardous air pollutants, such as sulfur dioxide or benzene, the states say in their complaint.

The lawsuit, filed in federal court in Manhattan last week, asks the court to vacate the policy. It was filed by nine Democratic state attorneys general: Minnesota Attorney General Keith Ellison and his counterparts in New York, California, Illinois, Maryland, Michigan, Oregon, Vermont and Virginia.

Defendants include the EPA, Administrator Andrew Wheeler and Assistant Administrator Susan Parker Bodine.

Ellison said Monday that the policy "puts Minnesota's most vulnerable communities even more at risk and denies them information about potential pollution that we know exacerbates symptoms of COVID-19."

The EPA announced its temporary enforcement discretion policy March 26, three days after the American Petroleum Institute, a major oil and gas industry association, wrote the EPA asking it to "temporarily waiv[e] nonessential compliance obligations" during the pandemic, the lawsuit notes.

The EPA move stunned environmental groups. A coalition led by the Natural Resources Defense Council sued the EPA, also in U.S. District Court for the Southern District of New York.

An EPA spokesperson said they can't comment on specific litigation, but said the agency has responded to the concerns of the state attorneys general.

"The EPA temporary policy is a lawful and proper exercise of the agency's authority under extraordinary circumstances," the spokesperson said. "As we've stated previously, contrary to reporting, EPA's enforcement authority and responsibility remains active and the temporary guidance does not allow any increase in emissions. This is not a nationwide waiver of environmental rules."

The Trump administration has been steadily undoing environmental regulations for years, rolling back more than 60 such rules, according to a New York Times tracker, with more in the works.

In an interview, Alexandra Klass, who teaches environmental law at the University of Minnesota Law School, said that many of the rollbacks underwent a rule-making process with public notices and comments. The EPA's curtailment in March did not. "It just seemed to come out of nowhere," Klass said.

Minnesota has authority to enforce most federal laws in the state, and just after the EPA announced the enforcement change, the state swiftly issued its own "flexibility" policy on environmental safeguards. It is tighter, requiring regulated parties to notify the Minnesota Pollution Control Agency (MPCA) if they can't comply with regulations because of the disruptions related to the pandemic, and to obtain approval from the state for any waiver.

About 40% of the more than 400 waivers the state regulator has granted so far are for Marathon Petroleum Corp.'s Speedway chain of gas stations and convenience stores to pump fuel after hours, without an attendant present.

Given the state's tighter policy, state regulators said the federal curtailment won't have a big impact in the state.

However, the EPA has retained enforcement of emission standards for hazardous air pollutants in Minnesota under the Clean Air Act, they noted. That covers monitoring and tracking tons of pollution from entities around the state, such as power plants and petroleum refineries.

The EPA also still handles the chemical accident safety program under the Clean Air Act in Minnesota.

Jennifer Bjorhus • 612-673-4683