Fenceline Communities and Green Groups Call for EPA to End ‘Free Pass’ for Polluters

Agency’s current enforcement discretion policy undermines protection of environment and public health when we need it most, advocates say.

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The United States Environmental Protection Agency (EPA) announced a sweeping “discretion enforcement policy” in late March, easing requirements for industries to monitor and report pollution emissions. Environmental advocacy groups have criticized the policy since it was first announced on the grounds that it allows polluters to use the Covid-19 crisis as an excuse to stop health and safety monitoring, without notifying the public. Last week, more than 150 fenceline communities, environmental groups, and environmental justice organizations released a formal letter to EPA leadership and key members of Congress expressing their outrage at the policy and recommending that the EPA rescind it.

photo of petrochemical plant
The EPA’s recent relaxation of monitoring and enforcement policies follows years of environmental rollbacks by the Trump administration. Photo by Louis Vest.

“Now more than ever, we need EPA to do its job and protect our health — not put it at greater risk,” Gina McCarthy, president and CEO of the nonprofit environmental advocacy group Natural Resources Defense Council (NRDC), said in a statement. “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.”

Over the past three years, the Trump administration has initiated reversals of nearly 100 environmental rules. The majority of these rollbacks — including the easing of fuel efficiency standards, weakening limits on pollution, and lifting requirements for environmental reviews — have been carried out by the EPA. The agency’s “discretion enforcement policy” relaxes oversight on polluting companies even further.

In its announcement of the new policy, the EPA stated that travel and social distancing restrictions to limit the spread of Covid-19 may impact companies’ abilities to carry out monitoring, testing, and reporting that are required by federal environmental regulations. Ostensibly, the policy responds to consequences arising from the pandemic that limit companies’ abilities to “perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.”

But, as the affected communities and organizations state in their letter opposing the policy, “EPA’s policy goes far beyond reasonable and appropriate accommodation to the current situation. By providing for waiver of enforcement actions and penalties for violations of critical worker and public protections, with no submission of evidence required and no time limit, the policy invites facilities to shirk essential responsibilities to protect health and safety without consequence. The policy is so broad that it allows EPA to waive enforcement even if suspension of otherwise required activities causes an ‘imminent threat’ to health or the environment.”

The policy was applied retroactively, excusing companies from complying with federal environmental standards beginning on March 13. The EPA will not require industries to “catch-up” on abandoned monitoring or reporting efforts, and does not require that companies notify either the agency or the public when they forgo environmental monitoring or reporting during the pandemic.

According to the letter, the indiscriminately broad enforcement discretion policy is “suspect on its face,” because the EPA “provides no basis for its assumption” that facilities that continue operations during the pandemic will not be able to keep up with routine — and federally mandated — health and safety monitoring. It goes on to state that the policy undermines safety and increases the possibility of large chemical releases; that it will disproportionately impact low-income communities and communities of color; and that it ignores the links between environmental health and Covid-19 risk.

Backed by the Trump administration, the EPA is “opening the sluice gates for polluters by announcing that it plans to simply look the other way when industry breaks the law,” said Robert R. M. Verchick, Board President of the Center for Progressive Reform, a research and education group committed to protecting health, safety, and the environment. “Filing paperwork late is one thing, but ‘forgive and forget all’ is no way to protect Americans from harmful pollution.”

The letter follows several other efforts on the part of environmental justice groups in opposition to the new policy. On April 1, the NRDC and a coalition of environmental and public interest advocacy groups filed a petition calling on the EPA to rescind the non-enforcement policy, or to replace it with a narrower one granting time-specific waivers on a case-by-case, evidence-supported basis. The petition also encourages the EPA to require companies to publicly disclose if and when they stop monitoring or reporting their pollution emissions.

The EPA ignored the request, and on April 16, the NRDC filed a lawsuit asking a federal court to order the agency to respond to the petition. The lawsuit describes the EPA’s policy as “especially dangerous,” given statistic evidence of air pollution leading to significantly higher Covid-19 death rates.

“Unequal access to clean air is already a huge problem; respiratory health of low-income and communities of color is already disproportionately impacted by industry pollution,” said Amber Garcia, executive director of the environmental and health nonprofit Women’s Voices for the Earth. “As a result, these communities are at even greater risk of adverse health impacts from Covid-19.”

According to a 2014 report published by the Environmental Justice and Health Alliance for Chemical Policy reform, 134 million people live within the “vulnerability zones” surrounding 3,433 high-risk chemical facilities in the US. Residents of these zones are at risk of toxic air and water pollution, chemical releases, and explosions. Communities in the “fenceline” areas nearest hazardous facilities –– which are at the highest risk of chemical disaster –– are often low-income and communities of color.

As the NRDC reports, citing a study analyzing nationwide violations of the Safe Drinking Water Act, water systems serving racial, ethnic, and language minority groups were most likely to be in violation of regulatory standards for safe water.

“Communities of color and working class communities have been disproportionately impacted since before the industrial revolution,” José Bravo, Executive Director of Just Transition Alliance, a coalition of labor, environmental and economic justice advocates, Indigenous Peoples, and working class people of color, said in a statement about the letter. “For the EPA to now intentionally move the entire agency toward ‘Dereliction of Duty’ and justify it by using the Covid-19 pandemic as an excuse, is tantamount to the worst form of environmental racism.”

The risks and health hazards faced by vulnerable communities in areas close to chemical facilities are cumulative, and the effects of a disease like Covid-19 on at-risk populations that already suffer from high rates of cancer, respiratory illness, and food scarcity are potentially catastrophic. The EPA’s relaxation of enforcement on compliance with environmental standards “in the name of Covid-19” is, as the letter points out, “ironically counterproductive and poorly timed” and will inevitably put already vulnerable communities at even greater risk of suffering worse outcomes from Covid-19.

“This pandemic is only exposing existing chronic conditions that result in profound, life changing health effects for millions of families,” says Judy Robinson, executive director of Coming Clean. “At some point, the White House is going to say it’s safe to take masks off. But it has never been safe in [fenceline] communities to breathe the air.”

The 152 signatories to the letter call on the EPA to rescind or replace its new policy, and demand that Congress exercise oversight and hold the EPA accountable to protect human lives and ensure environmental safety standards. Their letter speaks to the potentially detrimental impacts of federal decisions that further endanger communities and families during an already precarious moment for both human health and the environment.

Judy Robinson is not the national co-coordinator of the Environmental Justice Health Alliance as an earlier version of this article mentioned. That post is held by Michele Roberts.

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