EPA May Again Update Enforcement and Cleanup Policies in Light of New COVID-19 Executive Order

Akin Gump Strauss Hauer & Feld LLP

President Trump issued an Executive Order on Regulatory Relief to Support Economic Recovery on May 19.1 Generally, the Order directs federal agencies to respond to the COVID-19 crisis by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”

It remains to be seen how the U.S. Environmental Protection Agency (EPA) (and, frankly, other regulatory agencies) will respond to the Order in ongoing and future rulemaking and enforcement decisions. EPA itself stated it is “continuing to do its part to address COVID-19 while moving forward with a regulatory reform agenda,” and will “work to assess which EPA regulations might be available to streamline in order to achieve” the Order’s goals.2 EPA is ahead of the curve, having issued temporary guidance regarding its enforcement discretion and site field work during the pandemic over the past two months.3 (We discussed those guidance documents here and here.) Although both policies already provided broad flexibility, EPA may still update them in light of the Order’s directives and a growing understanding that the disruptions caused by the pandemic will not be short term. At the same time, however, EPA’s temporary enforcement discretion policy has generated significant concern among some members of Congress, and further enhancements to regulatory flexibilities could sow more discord with key legislators in oversight roles.4 In any event, regulated entities may get a sneak preview of any additional guidance when EPA publishes its Spring 2020 Unified Agenda, expected in the coming weeks. We will monitor that closely to see if it foreshadows further rollbacks, delays or other regulatory efforts to address the pandemic. Stay tuned for updates.

1 https://www.whitehouse.gov/presidential-actions/executive-order-regulatory-relief-support-economic-recovery/.

2 https://thehill.com/homenews/administration/498614-trump-orders-agencies-to-cut-regulations-that-inhibit-economic.

3 https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf.

4 https://thehill.com/policy/energy-environment/498813-epas-wheeler-grilled-by-democrats-over-environmental-rollbacks-amid.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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