The US Environmental Protection Agency announced in late March that it is easing its enforcement of various environmental standards during the coronavirus pandemic on a temporary basis.

The new policy comes in response to requests from industry, which argued that workers cannot perform all of the tasks required to comply with environmental laws while complying with “social distancing” recommendations or working from home to prevent the spread of virus.

The EPA assistant administrator for enforcement and compliance assurance, Susan Bodine, made the announcement in a March 26 letter to “all governmental and private sector partners.” 

Bodine said that EPA will exercise broad “enforcement discretion” regarding increases of pollution released above legal limits that are linked directly to the pandemic, and that the agency will address such civil violations on a case-specific basis.

The policy reportedly applies retroactively to occurrences from March 13 forward until told otherwise.

While it appears that the EPA may refrain from enforcing against facilities that cannot meet certain legal obligations under agency regulations, it remains uncertain what failures will eventually be determined by the EPA to be linked sufficiently to the outbreak to merit relief. 

The temporary enforcement discretion policy applies to civil violations during the coronavirus outbreak only.

Caveats

It does not provide for any leniency for criminal violations of federal environmental laws, which often require an element of intent.

Further, the policy does not apply to activities carried out under RCRA corrective action enforcement or the Superfund law.  It is possible that EPA will address those matters in future policy announcements.

Different categories of civil noncompliance are to be treated differently under the policy.  For example, EPA does not expect to seek penalties for noncompliance with routine monitoring and reporting obligations that result from the pandemic, but EPA does expect operators of public water systems to continue to ensure the safety of their drinking water supplies.

The guidance directs facilities to contact EPA or other appropriate regulators if operations affected by the outbreak could either create an acute risk or imminent threat to human health or the environment, or if there is a failure of air emission control, water treatment systems or other equipment that could result in exceedances of enforceable limitations, land disposal or other unauthorized releases.

In short, the policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. 

The policy also describes the steps that regulated facilities should take to qualify for enforcement discretion.  To qualify, the owners or operators of facilities must document decisions and steps made to prevent or mitigate noncompliance.  Noncompliance must be caused by the pandemic.

The best advice is to make every effort to comply, and keep those efforts documented on an ongoing basis.  Consideration should also be given to notifying EPA on a timely basis of those steps and non-compliances, and should certainly be done promptly when more serious issues arise.  Demonstrable efforts to keep open the lines of communication with regulators may be seen in a positive light when determinations on whether to seek enforcement are eventually made.

EPA makes this point clear in a footnote to its new policy:  “Regulated entities who voluntarily discover, promptly disclose, expeditiously correct, and take steps to prevent recurrence of potential violations may be eligible for a reduction or elimination of any civil penalties that otherwise might apply.  Most violations can be disclosed and processed via the EPA’s automated online “eDisclosure” system (see https://www.epa.gov/compliance/epas-edisclosure).  To learn more about the EPA’s violation disclosure policies, including conditions for eligibility, please review the EPA’s Audit Policy website at https://www.epa.gov/compliance/epas-auditpolicy.”

It is possible that implementation of the policy will be challenged in the courts as overly broad and without legal foundation, casting uncertainty over a party’s ability to count on the policy as protection down the road.

Whatever the reach and validity of the policy at the federal level, the most important point for the regulated industry to note is that the policy appears limited to EPA, and most states have been delegated authority to enforce federal environmental laws.

Bodine included the following warning in her letter:

“Authorized states or tribes may take a different approach under their own authorities.  The EPA will undertake to coordinate with other federal agencies in situations where the EPA shares jurisdiction over a regulated entity’s environmental compliance obligations.” 

The policy itself notes that “[m]any states also offer incentives for self-policing; please check with the appropriate state agency for more information.”

Thus, it appears that this policy may offer limited real-world protections for regulated facilities, except where EPA is the regulator or where the facility is located in a state that eventually follows suit.

Environmental groups and some former top Obama EPA officials have raised concerns that the temporary plan will become an indefinite nationwide waiver of environmental regulations.

EPA’s policy on enforcement during the covid-19 outbreak can be found here: https://www.epa.gov/enforcement/enforcement-policy-guidance-publications

Regarding the policy’s duration, EPA notes that, “[i]n order to provide fair and sufficient notice to the public, the EPA will post a notification at least seven days prior to terminating this temporary policy.  Any such announcement should be made available here: https://www.epa.gov/enforcement/enforcement-policyguidance-publications

Deregulatory Efforts

EPA’s new enforcement discretion policy flows in part from requests from a myriad of industry groups that EPA suspend enforcement during the outbreak.  At the same time, many of those same groups have also been asking EPA to find ways to offer broader regulatory exemptions to ease the impact of the economic crisis.

The Trump administration has already been rolling back a number of environmental regulatory measures from the Obama-era. 

The US Department of Transportation and EPA announced a further rollback of Obama-era vehicle greenhouse gas and fuel economy standards as the NewsWire went to press.  The joint agency action comes in advance of a statutory deadline requiring DOT to release new fuel economy standards.

The rollback is expected to allow new vehicles in the US to emit approximately one billion tons of carbon dioxide more over their expected lifetimes than they would have under the prior standards. 

Automakers will now have to increase the fuel economy of passenger cars by just 1.5% a year as opposed to 5% a year earlier.  

This is the second stage of the effort to ease limits on tailpipe emissions from vehicles. 

In September 2019, the Trump administration blocked California from setting tougher tailpipe pollution standards than the federal standards, a power California has held since the Clean Air Act was first passed more than four decades ago.  At that time, because California had already been working to address its unique air pollution problems, the federal government let it write its own rules as long as those rules are at least as strict as federal law.

Legal challenges are already underway over whether California can have tougher standards.  Further litigation over the change in fuel economy standards at the national level is inevitable.

Aside from autos, EPA continues to move forward with draft guidance easing strict air permitting requirements for various industry sectors. 

For example, EPA is considering draft guidance that might allow industry to start constructing projects that might increase air emissions without first obtaining a new source review air permit. 

The draft seems to suggest that EPA will limit its understanding of the term “begin actual construction” under new source review regulations to construction of an “emissions unit.”  An emissions unit is the piece of equipment that has the potential actually to emit pollution.

The latest construction guidance appears to apply to federally issued permits and those issued by entities with EPA-delegated permitting authority.  The draft guidance is merely recommended for state regulators who issue permits under EPA-approved state implementation plans for complying with federal air standards.

Other ongoing efforts include limiting consideration of climate change in environmental reviews for many infrastructure projects, easing controls on ash from coal plants and loosening restrictions on mercury emissions.

The push early in 2020 is intended to shield the policies from easy reversal if Trump loses the White House in the 2020 election.  Under the Congressional Review Act, Congress can overturn a federal regulation or rule within 60 days after it is finalized.  If Democrats win control of the White House and Senate in November, and keep control of the House, any rule completed after late May or early June would be vulnerable.