April 7, 2020

Trump’s EPA Uses the Coronavirus Crisis to Mask Environmental Deregulation and Suspend Enforcement

Joel A. Mintz Professor of Law Emeritus and the C. William Trout Senior Fellow at Nova Southeastern University College of Law


It has often been observed that natural disasters bring out the best and worst in people. Sadly, with regard to environmental protection, the coronavirus pandemic has brought out the worst in the Trump administration. Using the pandemic as a pretext, Trump’s EPA has continued to propose and implement substantial rollbacks in important safeguards to our health and the environment while issuing an unduly lax enforcement policy.

For example, the administration recently issued a final rule rolling back automobile fuel efficiency standards. Its new regulation effectively undoes the federal government’s program to limit greenhouse gas emissions. In a severe blow to global efforts to address the climate crisis, the regulation allows motor vehicles driven in the United States to emit almost 1 billion tons more carbon dioxide than would have been permitted under the previously effective requirements.

Moreover, EPA is now in the process of rushing through a so-called “transparency rule” that would greatly limit the scientific studies that the agency may use when proposing or revising its regulations. This dramatic regulatory change will be used to curb important, much needed scientific and medical research, and will have harmful, long-range effects on our health and the environment.

In its haste to implement these so-called “regulatory reforms,” the agency has denied requests to extend open public comment periods. During an obviously fraught period, when many public health officials and scientific experts are understandably focused on combating COVID-19, EPA’s rigid refusal to grant additional commenting time is as arbitrary as it is unfair.

Beyond jamming through anti-environmental regulatory and research rollbacks, EPA has dangerously relaxed its enforcement policies. In a memorandum issued March 26, EPA’s Assistant Administrator for Enforcement and Compliance announced a “temporary” policy governing EPA enforcement during the pandemic. This newly minted policy has no stated end date. It declares the agency will now not seek civil penalties when pollution sources violate “routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations” as a result of COVID-19. Facilities that suspend these activities need not immediately notify the agency that they are doing so. Instead, they must explain the basis for their actions and decisions if — and only if — EPA later seeks to learn what they have done and why. How the agency is to find out about these non-notifications and seek an explanation for them remains a mystery.

This unprecedented policy has all the hallmarks of a political concession to powerful special interests. Rather than being a mere annoyance for operating facilities, self-monitoring, training, accurate laboratory analysis, and self-reporting and certification are critical aspects of pollution control in the United States. In the real world, EPA’s non-enforcement policy is an invitation to cheat — boosting profits by violating environmental safeguards.

From the standpoint of public health and the environment, sudden accidental releases of toxic air pollutants are currently of particular concern. These releases — which may occur unmonitored under EPA’s new policy — may even take place without the knowledge of industrial facility operators themselves. Moreover, in many cases, the agency will have no way of knowing that the releases have happened, nor will they be able to respond to them in a timely way by insisting on prompt mitigation measures.

Many toxic air pollutants increase the risk of fires and explosions. They have also been proven to seriously exacerbate lung diseases (including asthma and COPD) and cardiovascular illnesses. In a time of widespread lung disease, relaxing requirements that identify and discourage toxic pollution releases is unconscionable.

Effective pollution controls are a critical legal and moral responsibility of industrial enterprises, as well as government institutions. Arguably, that principle is all the more true in the midst of a serious national health crisis. By any reasonable measure, self-monitoring must be seen as an “essential” obligation for owners and operators of facilities that do (or may) pollute the environment, and company personnel who monitor and report on company pollutant releases are “essential personnel.” Their vital work must continue.

In exceptional instances, where the COVID-19 crisis genuinely creates circumstances that prevent an industrial facility from complying with environmental requirements, EPA may well wish to exercise enforcement forbearance in an appropriate manner, carefully tailored to the unique circumstances of the particular facility. But the blanket enforcement waivers contained in the agency’s new enforcement policy are unnecessary and irresponsible.

To do its enforcement work properly, EPA must modify its COVID-19 enforcement policy promptly and use its discretion with far more wisdom and good sense.

 

Environmental Protection, Environmental Regulation, Regulation and the Administrative State