The Environmental Pollution Agency Prioritizes Environmental Rollbacks While Dropping Environmental Enforcement

New Policy Allows Companies to Use Covid-19 As an Excuse to Pollute

The covid-19 epidemic is providing the Environmental Protection Agency with the perfect opportunity to demonstrate its priorities:  full speed ahead with environmental roll backs, including greenhouse gas/fuel economy standards for cars, cutting back on the regulation of mercury from power plants, loosening regulations on coal ash from coal plants and more.  Employees at EPA have anonymously described the “relentless pressure” they are facing from supervisors to issue the roll backs even as they are hunkered down at home because of the corona virus pandemic .  An increasing number of EPA workers have tested positive for the virus, and of course others are saddled with the additional responsibilities of taking care of children full time while schools are closed.

Meanwhile, companies that pollute are receiving  far more sympathetic treatment from EPA head Andrew Wheeler. In a just released memo, and accompanying announcement, EPA has made clear that it will not “seek penalties for noncompliance with routine monitoring and reporting obligations” due to the coronavirus pandemic.  Not only that, the policy applies retroactively to March 13 and remains in effect until further notice.  Companies who violate pollution laws need only claim that the non-compliance was in some way related to the outbreak of the disease.  I understand the need for flexibility and compassion during the outbreak, but dropping all enforcement while giving companies a loophole so big they can practically pollute with impunity is outrageous. As President Obama’s former head of EPA’s Office of Enforcement told The Hill, “This EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future.”

Do we need any more proof that the agency should be renamed the Environmental Pollution Agency?

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Reader Comments

4 Replies to “The Environmental Pollution Agency Prioritizes Environmental Rollbacks While Dropping Environmental Enforcement”

  1. this is an ill-informed and biased piece that does not warrant any serious consideration. many states are issuing enforcement discretion requests for routine monitoring and reporting. many companies are encountering difficulties because of staffing shortages. Even EPA contractors are facing delays in obtaining approvals for off-site disposal of contaminated soils. The writer should get her head out of the clouds and return to earth.

    1. First, many monitoring, reporting and recordkeeping (MRR) requirements under federal and state rules (generally for larger sources) are produced and filed electronically, without source/company personnel, so as a practical matter, waiving these requirements is likely unjustified. Second, an “enforcement discretion” waiver can only be allowed based upon a case by case request based upon a showing of unavoidable necessity [“force majeur”] by a single, specific source, or emission point at a single company/source; such must be on the recod, reviewable and subject to challenge by the public on the public record. EPA and states are not authorized to issue wholesale “enforcement discretion” waivers, nor may the agencies adopt a policy to prospectively waive enforcement to any group or category of numerous sources. In short, agencies are not authorized to [as here] cancel or waive applicable requirements. Any state or federal attempt to do so is clearly ultra vires, a violation of statutory strict liability, and contrary to the express statutory prohibitions.

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About Ann

Ann Carlson is currently on leave from UCLA School of Law. She is the Shirley Shapiro Professor of Environmental Law and was the founding Faculty Director of the Emmett I…

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