Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.

State Opposition

Governmental opposition has been mounting in the weeks since the Policy was published. Most recently, the attorneys general of New York, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin sent an April 15 letter to EPA urging rescission of the Policy. The AGs cited several concerns, including:

  • “the [EPA’s] lack of consideration of the policy’s potential impact on public health, especially the health of low income and minority communities who are greater risk of suffering adverse outcomes from COVID-19”
  • the lack of a requirement for public notice of noncompliance due to COVID-19
  • “EPA’s statement in the policy that it may forego enforcement even in situations where a polluter’s noncompliance presents an imminent threat to public health or the environment”
  • EPA’s alleged lack of consideration for “the connection between air pollution and cardiovascular and respiratory conditions”
  • EPA’s statement “that it will not take enforcement action against companies that violate existing reporting and monitoring requirements under numerous environmental laws provided that the companies draw a nexus between COVID-19 and their noncompliance.” The letter closes with a particularly noteworthy statement: “[We] stand ready to hold regulated entities accountable under critical federal environmental laws if EPA will not.”

The state AGs’ letter was just the latest example of an ever-increasing cacophony of opposition to and second-guessing of the Policy. In an April 9 letter, the California Attorney General raised similar arguments to those of the April 15 letter, citing “serious concerns with the broad-brush, retroactive policy announced by the [EPA].” Since that initial letter, California’s environmental protection agency (CalEPA) has upped the ante, offering a more limited form of enforcement relief and proclaiming that it “will . . . fill any enforcement gaps left by the U.S. EPA’s decision to reduce environmental oversight.” Several state governments, it seems, are raising a common theme — they do not believe the Policy remains protective of environmental law, human health and the environment, and they are prepared to step in where they believe EPA is failing to do so.

Other states that have criticized the EPA policy have issued their own policies that, while differing in tone, offer similar guidelines and potential enforcement relief. For example, while the press release associated with Virginia’s COVID-19 enforcement guidance takes a stern tone that “all regulated entities are expected to make every effort to comply with environmental compliance obligations, adhere to permit limits, and maintain the safe and environmentally protective operation of their facilities,” the policy provides similar relief as the EPA Policy. Under the Virginia policy, the state will consider any noncompliance resulting from COVID-19 on a case-by-case basis and requests that any noncompliance be minimized and well-documented, including by documenting how COVID-19 was the cause of the noncompliance. Similar to the EPA Policy, if the state agrees that COVID-19 impacts were the cause of noncompliance, the state does not anticipate penalizing certain minor violations, such as routine compliance monitoring, sampling, reporting and certification obligations.

The opposition has not been limited to state governments, however. Several members of the U.S. Senate questioned EPA’s Policy and approach to the pandemic in an April 1 letter, stating in part that “EPA must balance any relaxation in enforcement efforts taken to prevent the transmission of COVID-19 with its important mission to assure compliance with environmental laws and regulations, and must not allow enforcement discretion to be used as a license to pollute freely.” In response to the senators’ letter, EPA responded the next day, assuring the senators that “EPA continues to enforce the environmental laws and protect human health and the environment nationwide.” EPA also responded in a similar fashion to letters from members of the U.S. House of Representatives on the same day. Despite the criticisms from Congress, it is unlikely that Congress will take any action to curtail or modify the Policy as its focus remains on the nation’s economic recovery.

Environmental Group Opposition

Environmental groups are also actively mobilizing their opposition to the Policy, and they are doing so in earnest. On April 1, environmental groups filed a petition requesting EPA issue an emergency rule within seven days of that petition. The requested rule would require a disclosure from any business choosing to exercise the discretion granted under the Policy. When EPA did not respond to the petition within seven days, several environmental groups filed suit in the Southern District of New York seeking declaratory and injunctive relief, including an order for EPA to respond to the petition. While that case is now pending, recent actions by another environmental group suggest it may also file suit after it submitted an April 9 Freedom of Information Act Request for records relating to the Policy.

Like the governmental opposition to the Policy, environmental group opposition is expected to increase and evolve in the coming days and weeks. While environmental groups’ current focus is on receiving information on the use of the Policy, the greater risk is that these groups may use the citizen suit provisions in most major environmental statutes to bridge any perceived enforcement gap where they believe EPA and the states are not sufficiently enforcing or that the noncompliance is not sufficiently the result of COVID-19-related issues.

What the Opposition Means for Enforcement Discretion

Given the level and variety of opposition to the Policy, companies should remain cautious and thoughtful when relying on the Policy for any sort of environmental enforcement relief. Thorough documentation tying the noncompliance to COVID-19 will be critical for companies seeking to avail themselves of the EPA Policy or state policies. All events of noncompliance or other deviations from normal compliance conditions should be internally documented with an eye toward preserving all applicable legal defenses in the event of state or third-party environmental group lawsuits. Additionally, timely communication between EPA, state, tribal or local agencies and parties’ EHS staff will remain vital to maintaining consistency with the Policy. Further, close monitoring of ongoing developments surrounding the Policy (and corresponding state actions) will be beneficial.

Above all, parties should understand that the benefits of the Policy are limited only to EPA enforcement obligations. Nonfederal agencies remain separate and apart from the Policy and are not bound by its terms. Consider a close review of all applicable state, tribal and local agency enforcement discretion policies, where these policies exist.

The attorneys at Pepper Hamilton and Troutman Sanders are actively working to assist companies in evaluating these complex issues and working with environmental regulators during this challenging time. For more information on these issues, please contact Todd Fracassi (Pepper Hamilton), Mitchell Guc (Pepper Hamilton), Randy Brogdon (Troutman Sanders) or Patrick Fanning (Troutman Sanders).

Photo of Todd Fracassi Todd Fracassi

Todd advises clients on a broad range of environmental matters, including environmental enforcement, compliance and permitting, mergers and acquisitions, brownfield redevelopment, remediation obligations under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Part 201 of the Michigan Natural Resources and Environmental Protection Act…

Todd advises clients on a broad range of environmental matters, including environmental enforcement, compliance and permitting, mergers and acquisitions, brownfield redevelopment, remediation obligations under Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Part 201 of the Michigan Natural Resources and Environmental Protection Act (Part 201), and other state remediation statutes and regulations.