On April 15, 2020, Attorneys General of 14 states, including New York, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin, sent a letter to the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) – referred to hereafter as the “AG Letter.” The AG Letter provides that: “we are greatly concerned by the Environmental Protection Agency’s recent issuance of a nationwide policy significantly curtailing enforcement of our nation’s bedrock environmental and public health laws, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program (March 26, 2020).” AG Letter at page 1. The EPA March 26, 2020 policy memorandum will hereafter be referred to as the “Temporary Policy.” 

The AG Letter goes on to provide that: “[a]lthough it is appropriate for EPA to consider whether safeguards that businesses are taking against the coronavirus impact their ability to comply with those laws, the agency cannot—in the midst of a public health crisis—lose sight of its mission to protect public health and the environment. Because the policy turns a blind eye to the impacts on our communities of more pollution and lesser accountability, we strongly urge EPA to rescind it.” AG Letter at page 1. The AG Letter expresses a particular concern for “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. For example, EPA states in the policy 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 COVID19 and their noncompliance.” AG Letter at page 2. The AG Letter goes on to express concern that EPA “may forego enforcement even in situations where a polluter’s noncompliance presents an imminent threat to public health or the environment.” AG Letter at page 2. The AG Letter closes by asking EPA to rescind the Temporary Policy and adds that “[i]n the meantime, we will continue to enforce our state environmental laws in a reasonable manner, and stand ready to hold regulated entities accountable under critical federal environmental laws if EPA will not.”

EPA addressed the types of concerns described in the AG Letter in the Temporary Policy itself as well as a clarification of the Temporary Policy by letter dated April 2, 2020 (“April 2 EPA letter”). See attached links. In the April 2 EPA letter, the Agency clarified that it is continuing to enforce the nation’s environmental laws, and that the Temporary Policy continues to require a case-by-case determination of whether any deficiency qualifies for enforcement discretion under the Temporary Policy. See April 2 EPA letter at pages 1 and 2. The April 2 EPA letter notes that in most instances, those case-by-case determinations will not be made until after the pandemic – with the limited exception for circumstances where a company receives an advance “No Action Assurance” waiver. See April 2 EPA letter at page 2 and Temporary Policy at page 6-7.

With respect to specified unpermitted discharges or releases resulting from failures of pollution control equipment, the Temporary Policy itself provides for notification as quickly as possible. EPA indicates regulated entities should continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment. See Temporary Policy at pages 4-5. The Temporary Policy specifies that facilities “should contact the appropriate implementing authority (EPA region, authorized state, or tribe) if facility operations impacted by the COVID-19 pandemic may create an acute risk or an imminent threat to human health or the environment.” See Temporary Policy at page 4. EPA further indicates its intention to focus the Agency’s limited resources on any situation creating an acute risk or imminent threat to public health or the environment. See Temporary Policy at pages 4-5, and 7. EPA makes the case that this approach is consistent with the best use of its limited capacity and the desire to avoid unnecessarily subjecting people to COVID-19 infections. Further, the Temporary Policy does not provide relief for criminal actions. See April 2 EPA letter at page 3.

Given the above considerations, there appears to be no undue encouragement for sources to somehow blatantly disregard environmental requirements or carelessly allow situations to exist that could endanger human health or the environment. This is especially the case given that sources, in most cases, will not have an agreement on EPA’s enforcement discretion until after the fact, if ever. All enforcement options would be on the table when a source is considering how to respond to a situation arising during the pandemic. 

In addition, the Temporary Policy itself provides that sources seeking relief under the Temporary Policy should “make every effort to comply with their environmental compliance obligations.” Temporary Policy at page 2. Sources should act responsibly under the circumstances to minimize any effect or duration of any noncompliance, COVID-19 should be identified as the cause of the noncompliance, sources should return to compliance as soon as possible, and they should document the information addressed in the Temporary Policy. See Temporary Policy at page 3. Again, these provisions (including documentation ), stand against any allegation that the EPA Temporary Policy encourages sources to carelessly ignore environmental requirements or that the Temporary Policy promotes some wholesale reckless failure to comply with discharge or release limitations that will endanger public health and the environment. Sources will have to account for the reality that states may elect to pursue their own enforcement actions, as evidenced by the April 15 AG Letter. Sources will also have to account for the reality that environmental groups may pursue citizen suits against them in cases where these groups take issue with any alleged violation of environmental requirements – especially in case where endangerment and harm is alleged to have occurred.

EPA has addressed the allegation that there should be pre-approval for any discretionary use of enforcement by explaining that: “[t]he Agency strongly disagrees with those who argue that a more appropriate response to this public health crisis would be to force facilities to either shut down or to put people at risk by keeping all their workers at the facility at the same time, to continue routine monitoring and reporting in addition to maintaining the operation of critical infrastructure, including pollution control equipment. It also is no solution to force facilities to choose one of those options until EPA or a state could review the facts of each situation and approve an individual site-specific not action assurance.” April 2 EPA letter at page 3. EPA has pointed out that it does not have the capacity to pre-approve emergency compliance plans for the roughly 4.6 million facilities it regulates.

In conclusion, chief law enforcement officers of fourteen states are attacking EPA’s Temporary Policy. Sources considering this Temporary Policy should continue to account for the fact that states may take a different position in pursuing enforcement actions and should consult any COVID-19 policy provided by that state. This caution is particularly relevant in the fourteen states signing the AG Letter. Sources also need to account for the reality that environmental groups have challenged the use of the Temporary Policy and may pursue independent actions against sources that seek to take advantage of the Temporary Policy. Likewise, sources should continue to preserve all other defenses which may be available through other means, such as by regulation, permits, other documents and/or voluntary disclosure provisions, and must realize that some obligations may not be such that they are suitable for extensions or avoidance.