By Makayla Lopez*
In late March, after weeks of social distancing recommendations, business closures, and rising public health concerns, the Environmental Protection Agency (EPA) announced it would suspend its enforcement of environmental laws due to COVID-19.[i] The memorandum pronounced that entities will not be required to meet environment-compliance standards under certain regulations indefinitely, backdated to March 13, 2020.[ii] Thus, the agency will not issue fines for non-compliance for the foreseeable future.[iii]
Lawyers, experts, and public interest organizations have differing views on the impact this rollback will have on the environment. Cynthia Giles, former head of the EPA’s Enforcement Division during the Obama administration, questioned the reasonableness of the response as far too broad.[iv] Gina McCarthy, Director of the EPA under the Obama administration and current president of the Natural Resources Defense Council expressed indignation at the order, calling it “an open license to pollute” and “an abject abdication of the EPA mission to protect our well being.’’[v] McCarthy called this move unprecedented, saying that the EPA has never given up as much of its authority as it does in this announcement.[vi]
The EPA has suspended regulations in the past, including in 2017 when they suspended the “WOTUS” rule under the Clean Water Act.[vii] There, former EPA Director Scott Pruit cited litigation and uncertainty as reasons for the suspension, as the issue was going to the Supreme Court as to why such a suspension of enforcement was necessary.[viii] When that suspension occured, many in the environmental advocacy realm feared it would set a dangerous precedent for agencies to set aside their missions for political reasons.[ix] Litigation is already in the works for this move by the EPA, and EPA’s most recent announcement is much broader and far reaching than the 2017 suspension.[x] Environmental regulation has also been suspended in the past for natural disasters.[xi] However, those were short term and limited to specific geographic areas, not for an indefinite time period for the entire United States. These key differences show this move is unprecedented in kind.
Some officials have not taken the EPA’s announcement as an invitation to relax their environmental standards. Kristine Roselius, spokeswoman for the Bay Area Air Quality Management District, stated that the Bay Area will continue to enforce and monitor air pollution.[xii] Many states and localities, including the Bay Area, have stricter rules than the EPA, making this move arguably less meaningful.[xiii] However, clean air is not a local problem; it affects the nation and the world.Even if some areas have stricter rules, this does not solve the underlying issue that the order poses to clean air around the world. The effects of COVID-19 have brought public health to the forefront of everyone’s minds; environmental laws are not only meant to protect the environment but also public health, and they are needed now more than ever. In the midst of a pandemic, it is not a time to lessen the standards we place on people and corporations to protect the public’s wellbeing.
Professor David Uhlmann, director of the Environmental Law and Policy Program at the University of Michigan Law School and former chief of the Environmental Crimes Section at the Justice Department, stated that one possible silver lining is that the criminal provisions of environmental laws are still in force.[xiv] The memorandum emphasizes that the EPA will continue monitoring criminal conduct as well as activities related to CERLA’s Superfund and RCRA’s clean-up provisions.[xv] Further, environmental laws are already largely based on an honor code system, where sanctions and criminal proceedings primarily only occur if there has been multiple violations or a Title 18 violation, such as fraud or conspiracy.[xvi] Companies are required to self-identify their own pollution, monitor their own compliance with EPA permits, and report any violations.[xvii]
It is too soon to fully understand the implications of this move by the EPA, but it brings many of the issues in environmental law that existed before this pandemic to the fore. For instance, what is the standard for agencies in carrying out their missions in times of national crisis? Will the Administrative Procedure Act, which requires federal agencies to provide fair notice and an opportunity for comments and public input before agencies act come into play here?[xviii] Or will this be an even stronger precedent than before that the EPA and other agencies can act with more discretion and freedom in how they act? Another issue that is even more central under this memorandum is how the federal government and state and local authorities differ in carrying out environmental regulation. The Bay Area is an example of how states and local authorities have taken the lead in environmental regulation, a hotly contested issue in the case of California automobile pollution standards and the Trump administration’s effort to override them. Another implication that we may not know for some time is the impact EPA’s move will have on the coronavirus itself. Some experts are already saying that in some areas, those hardest hit are more negatively affected because of a lack of clean air and water.[xix] For example, in Detroit, many have been without clean water for several weeks, or even months, unable to even wash their hands.[xx] Further, as COVID-19 hits those with respiratory illnesses, as well as the elderly, hardest[xxi]; how has air pollution played into those who are infected and the severity of their symptoms? Will this move by the EPA exacerbate these effects or create its own? The coronavirus has shown the world and America the weaknesses in the many of its systems.What will it reveal about the weaknesses in environmental law and regulation?
The EPA’s moratorium on environmental enforcement during this crisis is very clearly a problem, the reasons for which are very likely to be litigated over extensively in the future. However, one clear reason the action is bad policy, which likely will not be litigated over, is that it stopped civil and administrative enforcement entirely, ending the possibility of the practice of prosecutorial discretion. Prosecutorial discretion is an important tool, in all cases but especially environmental ones. Some environmental laws, such as the Clean Water Act, are very broad, and if enforcement was based on the letter of the statute without leaving discretion to EPA and Department of Justice attorneys, many more cases would be brought, and likely they would be taken seriously.[xxii] Thus, as Professor Uhlmann notes, the EPA did not need to so sweepingly rollback enforcement, when the EPA could have done the same case-by-case review they do for every case anyway, to take COVID-19 into account instead.[xxiii]
This would have been the better way to approach environmental enforcement during the pandemic. For one, it would have the benefit of not being overboard in the memorandum’s effect in leaving out potential violations deserving of penalties. Instead leniency could have been provided to those in violation of any environmental laws for those that meet the criteria to do so.[xxiv] Further, this is already the practices of the EPA and DOJ; if the EPA had focused on their discretionary capabilities, rather than sweeping policy changes, it likely would have saved many people, including the EPA and the government time and money, that will surely be spent both justifying this move, and defending it in the future. More than this though, EPA’s policy is essentially signaling to polluters that they will not face any civil or administrative penalties for actions they take during this pandemic.[xxv] Not only does this potentially have vast ramifications for the wellbeing of the environment, as these laws are in place for a reason, it also has unknown yet worrisome effects on public health and wellbeing, as discussed above, because of how COVID-19 operates.[xxvi] The EPA decision to suspend enforcement of environmental regulations was a controversial, and increasingly unsound decision, they would have been far better off adhering to their established practices. However, they chose to deviate and take the side of businesses during this pandemic, and are likely to face the consequences for doing so during and after the crisis is resolved.
*Makayla Lopez is a Junior Editor on MJEAL. They can be reached via email at firstname.lastname@example.org.
[i] Susan Bodine, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, United States EPA, (Mar., 26, 2020).
[iii] Lisa Freidman, E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Polluters,New York Times, (Mar., 26, 2020). https://www.nytimes.com/2020/03/26/climate/epa-coronavirus-pollution-rules.html
[vii] David Festa, Why EPA’s suspension of the WOTUS water rule sets such a dangerous precedent, EDF Blog, Feb., 5, 2018. https://www.edf.org/blog/2018/02/05/why-epas-suspension-wotus-water-rule-sets-such-dangerous-precedent
[x] Rebecca Beitch, NRDC gears up to sue over Trump rollback of Obama water law, The Hill, (Mar., 30, 2020).
[xi] Steven Lee, EPA Chief Says Virus-Linked Looser Enforcement ‘Very Mild’, Bloomberg Law, (Apr. 2, 2020).
[xii] Susanne Rust, Citing coronavirus, EPA suspends enforcement of environmental laws, LA Times, (Mar., 27, 2020).
[xv] Susan Bodine, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, United States EPA, (Mar., 26, 2020).
[xviii] David Festa, Why EPA’s suspension of the WOTUS water rule sets such a dangerous precedent, EDF Blog, Feb., 5, 2018. https://www.edf.org/blog/2018/02/05/why-epas-suspension-wotus-water-rule-sets-such-dangerous-precedent
[xix] Sarah Alverez, Coronavirus spreading faster in Detroit than nearly anywhere in United States, The Bridge, (Mar., 25, 2020). https://www.bridgemi.com/michigan-health-watch/coronavirus-spreading-faster-detroit-nearly-anywhere-united-states
[xxi] Dennis Thompson, Caronavirus Strikes Men, Older People the Hardest, USNews, (Feb., 28, 2020). https://www.usnews.com/news/health-news/articles/2020-02-28/coronavirus-strikes-men-older-people-the-hardest
[xxii] David Uhlmann, Prosecutorial Discretion and Environmental Crime. Harv. Envtl. L. Rev. 38, no. 1 (2014): 159-216.
[xxiii] Susanne Rust, Citing coronavirus, EPA suspends enforcement of environmental laws, LA Times, (Mar., 27, 2020).
[xxvi] Lisa Freidman, E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Polluters,New York Times, (Mar., 26, 2020). https://www.nytimes.com/2020/03/26/climate/epa-coronavirus-pollution-rules.html