Legal & Regulatory

EPA Under Fire for COVID-19 Temporary Enforcement Directive

The Environmental Protection Agency’s (EPA’s) unprecedented temporary policy to relax enforcement of noncompliance with certain environmental rules in response to the COVID-19 pandemic has provoked an impassioned response from industry experts, environmental groups, and from the agency itself.

As POWER reported, the EPA’s Office of Enforcement and Compliance Assurance (OECA) on March 26 adopted a new temporary policy that gives it more “enforcement discretion” to address COVID-19–related disruptions facing the agency and industry.

The measure is notable for many reasons, and as lawyers from Hunton Andrews Kurth underscored on March 27, it is unprecedented. “[N]ever before in our practices have we seen EPA issue such an interim nationwide enforcement policy,” they wrote. “With the U.S. having now surpassed all other countries in the number of COVID-19 cases, however, OECA appears to be keeping up with today’s similarly unprecedented challenges. At any rate, the memorandum represents a commendable recognition of the newfound challenges that regulated companies across the country are experiencing in keeping a full workforce on the job and able to perform regularly required environmental duties,” they said.

However, the temporary policy has since faced a public firestorm, owing in part to widespread reporting that described the rule as an opportunistic loophole that would allow polluters to circumvent federal air and water rules. The New York Times, for example, described it as a “sweeping relaxation of environmental rules” that “set new guidelines for companies to monitor themselves for an undetermined period of time.” While the newspaper highlighted explanations from key officials at the EPA, it also quoted former EPA Administrator Gina McCarthy, who now serves as president and CEO of environmental group Natural Resources Defense Council (NRDC), as saying the policy is an “open license to pollute.”

The EPA issued an official statement on March 31 to “correct the record after reckless reporting” on the temporary compliance guidance. “This temporary policy is not a license to pollute,” it said. It also admonished outlets for relying on sources “who falsely claim that the policy provides a blanket waiver of environmental requirements or creates a presumption that the pandemic is the cause of noncompliance.”

The EPA explained that the policy does “not say that the COVID-19 pandemic will excuse exceedances of pollutant limitations in permits, regulations, and statutes. EPA expects regulated entities to comply with all obligations and if they do not, the policy says that EPA will consider the pandemic, on a case-by-case basis, when determining an appropriate response,” it said. The EPA also explained that it issued the policy in response to numerous questions from “both state regulators and the regulated community about how to handle the current extraordinary situation where contractors are not available because they cannot travel, state and local governments are imposing stay at home orders, and the number of people who have contracted COVID-19 and are in quarantine is rising.”

It is important to note, the agency said, that “EPA developed the Temporary Policy to allow EPA to prioritize its resources to respond to acute risks and imminent threats, rather than making up front case-by-case determinations regarding routine monitoring and reporting. The development of the policy was a group effort, involving multiple calls and with and drafts shared among EPA staff and managers, both career and political, at both headquarters and in the regions.”

Industry experts agreed. Tom Boer, a partner at Hunton Andrews urged regulated entities to “get the straight facts,” noting that evaluating the details is critical because the new temporary policy “is not as broad as some headlines, and twitter feeds, may appear to suggest at first blush.” Key to note is that “All relief under the memorandum is predicated on companies first making ‘every effort to comply with their environmental compliance obligations,’ ” the law firm said. “The default expectation under the memorandum, therefore, is that companies will continue to remain in full, timely compliance with all applicable requirements.”

Still, pushback against the temporary policy—which became effective retroactively on March 13 and whose end is indefinite because it relies on relief from the pandemic—appears poised to mushroom into yet another legal battle that regulated entities may want to take note of. On April 1, the NRDC and a coalition of 20 environmental justice, climate justice, and public interest advocacy groups unveiled a petition that essentially urges the EPA to issue an emergency rule protecting public health.

In a statement on April 1, Gina McCarthy again alleged the EPA is “using an unprecedented public health crisis to justify allowing polluters to put our health at even greater risk—at a time when we most need their protection.” The temporary policy, she said, is specifically harmful for communities that live near high-pollution emitting facilities. “And it’s especially egregious because these same communities face higher risks from COVID-19, as a result of pollution-related heart and lung problems. This agency is abandoning its responsibility to protect our health. It’s time for EPA [to] do its job and stop doing polluters’ dirty work.”

The petition was filed pursuant to the Administrative Procedure Act and the First Amendment’s petition clause. In it, the groups say that while they “fully appreciate the disruption and harm caused by the COVID-19 pandemic,” the “non-enforcement policy creates a clear opportunity for abuse” by regulated industries to suspend monitoring and reporting without public disclosure and without adequate justification or oversight.

The groups asked the EPA to publish, within seven days, a final, enforceable rule to ensure that, “at a minimum, the public receives prompt notice of any facility’s failure to conduct required monitoring or reporting in reliance on the March 26 policy.” Without such information, “members of the public cannot adequately protect themselves against the increased risk of harm created by EPA’s actions,” they said.

Sonal Patel is a POWER senior associate editor (@sonalcpatel, @POWERmagazine).

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