Morgan Marmaro, CLS ’21
For many of us, the COVID-19 pandemic has brought life to a halt. States have rushed to implement social distancing measures, ordering the close of non-essential businesses while non-essential workers work from home. This has provoked the question of “what is essential?” Hospitals, sanitation, courier, and restaurant workers all made the cut.[1] While keeping hospitals and streets clean are essential, Trump’s Environmental Protection Agency made the decision on March 26th that enforcing environmental violations was non-essential.[2]
There has been a backlash against the new temporary policy as many see the move as the administration taking advantage of an unprecedented global pandemic to advance their deregulatory agenda. Though facilities must comply with regulations “where reasonably practicable,” the EPA will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”[3] The EPA announcement stresses that the measures are temporary and only affect “routine monitoring and reporting obligations.”[4] Moreover, the policy only applies to civil violations and “does not provide leniency for intentional criminal violations of law.”[5]
To qualify for discretionary enforcement, facilities must provide documentation of “decisions made to prevent or mitigate noncompliance” and establish a causal link between the COVID-19 pandemic and the company’s noncompliance.[6] David Uhlmann, former chief of the environmental crimes section at the Justice Department, noted that suspicion of the decision—given Trump’s “deplorable record” on environmental protection—is not unfounded, but that “this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue.”[7]
Environmental advocates are unconvinced by the supposedly narrowly tailored policy. While some flexibility for the current pandemic might be understandable, environmental advocates are concerned that the COVID-19 pandemic is merely pretextual. Cynthia Giles, the former head of the EPA’s Office of Enforcement, noted that “[t]his EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future” and that she is “not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”[8] After all, as noted by senior attorney for Environment America, John Rumpler, “the absence of verified monitoring strikes at the heart of environmental compliance.”[9]
The policy also has some inconsistencies. While the EPA says documentation about the causal link between noncompliance and COVID-19 is mandatory to avail oneself of the enforcement discretion, it still forgoes all fines or civil penalties for failure to monitor, report, or meet other requirements.[10] The L.A. Times was quick to note that the oil and gas industries had been lobbying for relaxed environmental enforcement due to staffing issues.[11] Gina McCarthy, the former Obama-era EPA chief explained her outrage at the policy, noting that the waiver applied to “standard work that takes very few people to do.”[12] She further commented that many of the companies lobbying to relax standards due to staffing issues are also lobbying to keep their factories open so workers can keep their jobs.[13]
By implementing this policy, states will lack critical data on what pollutants have been released, hampering future environmental clean-up efforts. It is also interesting to see an ex ante pass being given to facilities rather than dealing with cases as they come up post-pandemic. How effective, or ineffective, the nascent policy will be depends entirely on enforcement and implementation.
[1] And from all of us quarantined at home, thank you profusely!
[2] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.
[3] Isaac Scher, The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic, Business Insider (Mar. 27, 2020), https://www.businessinsider.com/coronavirus-epa-stops-enforcing-environmental-protection-rules-2020-3.
[4] Ledyard King, EPA suspends some public health monitoring and enforcement because of the coronavirus crisis, USA Today (Mar. 27, 2020), https://www.usatoday.com/story/news/politics/2020/03/27/coronavirus-crisis-epa-eases-key-permitting-enforcement-oversight/2925990001/.
[5] See Scher.
[6] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.
[7] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.
[8] See Scher.
[9] See King.
[10] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.
[11] Id.
[12] Id.
[13] Id.
