Patrice Simms and Hilton Kelley document how the Trump administration is using the virus as cover to give industries a wink and a nod that it will let them off the hook when it comes to emissions releases and reporting.
In the city of Port Arthur, Texas, people are used to sheltering-in-place due to unseen dangers. We live in the shadows of oil refineries, chemical plants, and chemical incineration facilities. When lightning knocks out power or something else goes wrong at one of these sites, we are forced to seek shelter in our homes and seal the windows while the plants flare their pipes, releasing carcinogenic gases like benzene and sulfur dioxide into the air we breathe.
The coronavirus storming across the country has just knocked on our doors in Port Arthur. As of this writing, we know of 18 cases of COVID-19 in our city of 50,000, and we fully expect that number to rise. Where one in five families has a child with asthma and there’s the 10th highest rate of cancer in Texas, the community is facing a double whammy from industrial air pollution and a deadly virus that attacks our lungs and respiratory systems. Adding insult to injury, the Trump administration is now using the virus as cover to give industries a wink and a nod that it will let them off the hook when it comes to emissions releases and reporting.
Late last month, Trump’s Environmental Protection Agency announced sweeping plans to forgo enforcement of our nation’s environmental laws when polluters claim compliance isn’t “practicable” due to the COVID-19 pandemic. This action is deeply troubling in its unprecedented breadth, its imprecision, its lack of meaningful supporting analysis, its lack of transparency, and its potential to cause further injury and death to people in communities like Port Arthur.
Enforcement of federal environmental and public health protections is a core element of the EPA’s purpose. Families, communities, and workers rely upon the EPA fulfilling this duty as their primary shield against pollution-related illness and death.
The Clean Air Act, the Clean Water Act, and the nation’s other bedrock environmental laws do not authorize the EPA to broadly and preemptively excuse polluters from complying with the law. And EPA’s decision to retreat from its duty, rather than step up efforts to protect the public, is startling. For the agency to do so when so many communities like Port Arthur that carry the heaviest environmental burdens are among those facing the fallout from the COVID-19 pandemic is unconscionable.
Indeed, the breadth of this grant of enforcement discretion is staggering. It applies to virtually every kind of pollution across every industry sector, requiring little more than a post-hoc claim that “COVID-19 was the cause of the noncompliance.” EPA provides no specific analysis to justify such a broad enforcement discretion policy, nor has it narrowly tailored the policy to address only those challenges that clearly make compliance impossible. It fails to lay out what steps EPA expects industry to take to ensure maximum compliance, what threshold of difficulty might justify application of the agency’s discretion, or why, even in the face of these challenges, an advance enforcement discretion policy is appropriate rather than addressing problems case-by-case if and when they occur. Amazingly, the EPA fails even to state with clarity that it will take all necessary action where industry creates an imminent threat to human health or safety. That means in Port Arthur, the EPA has left us to fend for ourselves with absolutely no protection from dangerous toxics and chemicals polluting our air and water.
To compound this problem, the policy has no end date. A deadline puts the burden on the relevant industry to justify the need for extension of enforcement relief. In this case, the EPA is shifting the burden to force itself to justify the removal of the enforcement discretion, a difference with obvious and disturbing implications.
The EPA’s new policy also lacks any assurance of transparency for the public. In nearly every instance where industry invokes this new enforcement policy, there is no requirement to inform the public. In Port Arthur’s case, the oil refineries and other plants won’t need to alert us to any flaring activity or any failure to inspect for leaks of toxic gases because EPA has given a free pass to avoid compliance reporting and fenceline monitoring. Knowledge is life-saving, but nothing in the EPA’s new policy will ensure that such information ever becomes available. Moreover, the EPA has provided no assessment of the potential health-related impacts of its action.
Coronavirus has upended the way nearly all of us work, so, if some exercise of discretion might be appropriate in a specific instance, the EPA needs to provide for relief surgically where COVID-19 has truly made compliance impossible — not create a policy that invites excuses for violations of health and environmental laws that communities need now more than ever. As it stands, the agency’s failure of analysis and precision renders its policy susceptible to abuse, and is virtually certain to make pollution worse for people in Port Arthur who are already in harm’s way.
Viewed in the context of the Trump administration’s consistent and blatant hostility to the country’s environmental laws, as well as its attacks on science, there can be no doubt that this new policy, compounded by the pandemic, will result in more illnesses and deaths in frontline families and communities.
At a time when Americans are getting sick from a virus whose effects are compounded by air pollution, the EPA should step up and do the right thing: ensure that our environmental health and safety laws protect the most vulnerable communities for whom COVID-19 also presents the greatest risks. Port Arthur and other communities around the country are not expendable. We are families who have sacrificed so much for the greater good of our nation. Our communities deserve better from the EPA. The cornerstone of the EPA’s mission is “to protect human health and the environment” and we all rely on the EPA to take that duty seriously. People’s lives are at stake.
A leading environmental attorney and legal scholar, Patrice began his career as an attorney in the U.S. Environmental Protection Agency's Office of General Counsel, and later served as a counsel to the agency's Environmental Appeals Board. As a Howard University School of Law professor, Patrice taught, wrote, and spoke on various subjects related to environmental law and environmental justice.
Hilton Kelley is the Founder and Director of the Community In-Power and Development Association Inc. (CIDA) in Port Arthur, Texas.
Earthjustice’s Washington, D.C., office works at the federal level to prevent air and water pollution, combat climate change, and protect natural areas. We also work with communities in the Mid-Atlantic region and elsewhere to address severe local environmental health problems, including exposures to dangerous air contaminants in toxic hot spots, sewage backups and overflows, chemical disasters, and contamination of drinking water. The D.C. office has been in operation since 1978.