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What EPA’s ‘Enforcement Discretion’ During COVID-19 Really Means

March 27, 2020
By
Patrice Simms Vice President, Healthy Communities

VP of Litigation Patrice Simms explains how the U.S. Environmental Protection Agency has used this tool in the past, but never with this breadth. And there is no end date.

A story in The Hill newspaper yesterday sent shockwaves through the environmental community. 

Ominously headlined EPA suspends enforcement of environmental laws amid coronavirus,” it implied that the U.S. Environmental Protection Agency was simply closing up shop for an indeterminate period of time — giving free rein to industry and polluters to ignore vital environmental protections while the coronavirus crisis rages.

I was concerned. I worked for more than seven years as a lawyer at the EPA and in that time I worked on a number of these enforcement discretion letters. After seeing the headlines, and then reading yesterday’s letter, I came away somewhat relieved but still deeply troubled by unprecedented breadth of the agency action, its lack of detailed justification and transparency, and the potential for abuse by both industry and the Trump administration.

I’ll start with my (very mild) relief. In response to emergencies, it is not unusual for the EPA to use the tools at its disposal to signal its intention to forgo enforcement of environmental laws in very limited ways and under very specific circumstances — typically where noncompliance is narrow, unavoidable, and unforeseeable, and where the relevant industry did nothing to contribute to that noncompliance (by action or inaction). In this regard, the letter is drafted with much of same tone as letters that have come from previous administrations.

Yesterday’s action, however, is both unprecedented and startling for several reasons.

First, the sheer breadth of the enforcement discretion is astounding. I have never seen a blanket enforcement discretion letter that, in one fell swoop, invites industry to try to justify any and all noncompliance with almost any environmental obligation. What’s more, the EPA limits the policy neither to specific facilities or particular facility types, nor along any geographic or exposure-related parameters. In every case that I have seen (and certainly those I personally worked on), the agency has taken great pains to carefully describe the precise compliance challenges it is trying to address, to narrowly define the scope of enforcement discretion, and to explain with specificity why the discretion granted precisely overlaps with challenges created for the specific facilities affected by the underlying emergency. Yesterday’s letter makes no serious attempt to do this at all.

Second, given the breadth of the discretion granted, there is a worrisome lack of transparency for the public. In nearly every instance where industry invokes this new enforcement policy, there will be absolutely no way for those who will be most directly affected to know (for example, a community living next to a refinery that decides to stop fixing leaks of toxic gases). And these are the people most in harm’s way, not just from the excess pollution that would be allowed under this policy, but from the many burdens imposed by COVID-19 itself (both health and economic). Knowledge here could be life-saving, but nothing in EPA’s new policy will ensure that such information ever becomes available.

Third, the policy, strikingly, has no end date. An extension of enforcement discretion in my experience always has an end date. And that date is calibrated to the agency’s expectation about how long the unavoidable and unforeseeable event or circumstance will continue to make compliance impossible. EPA routinely includes such end dates, even where it is unclear when the emergency conditions will end. That is in part because it can always issue another notice to extend the date. Such an approach puts the burden on the agency to actually justify re-upping the grant of discretion. In this case, however, by including no end date, EPA is shifting the burden to force itself to justify the removal of the enforcement discretion (a difference with obvious and disturbing implications). Notably also, while EPA offered no forewarning of this impending policy (during which the public could have offered comments), it has put a premium on providing industry with “fair and sufficient notice” before it ends the policy — a troubling double standard that would have been avoided if EPA had simply included an end date.

At the end of the day, one of EPA’s primary functions under the law is the enforcement of federal statutory obligations relating to environmental and public health protection. This is a core element of EPA’s raison d’etre. Families, communities, and workers rely upon EPA fulfilling this duty as their primary shield against pollution-related illness and death. In light of the heavy burdens that many communities carry, from both pollution and COVID-19, one might reasonably expect that EPA should be focusing on how to meet the challenges presented by COVID-19 while proactively working to give our environmental laws the fullest possible effect, rather than declaring a sweeping retreat from its affirmative enforcement duties. This would ensure that the most vulnerable (for whom COVID-19 also presents the greatest risks) are given the most possible protection. To accomplish this, EPA would have carefully crafted any enforcement discretion to surgically allow for relief only where it was truly needed. 

The route that Trump’s EPA took was something else entirely. And read in the context of this administration’s consistent and unabashed hostility to the country’s environmental laws, it’s hard to imagine that this won’t result in further injury to the families and communities who live with the immediate burdens of pollution. 

Earthjustice will be watching these developments carefully — and will do whatever we can to hold industry and the administration accountable for what they do under the cover of COVID.