When businesses are faced with the staggering effects of natural disasters such as Hurricane Harvey, they usually rise to the occasion, doing all they can to remediate those effects and provide needed goods and services. In the process, they may face the Hobson’s choice of whether to take actions that are needed to promote the well-being of the community, but that would violate environmental laws. Fortunately, the federal Environmental Protection Agency (“EPA”) has the authority and discretion to provide some much-needed help to those facing storm-related environmental requirements or barriers to compliance. The Texas Commission on Environmental Quality has already obtained approval from Governor Abbott to suspend a range of TCEQ regulations, and similar comfort from EPA would provide the complementary assurances at the federal level.

Various federal environmental laws include provisions authorizing EPA to grant emergency relief from normal requirements, e.g., exemptions from permitting requirements. A number of environmental statutes also expressly provide “Act of God” defenses against some environmental liabilities, without the need for any waivers. In cases where the governing statute does not specifically empower EPA to alter existing requirements, EPA can use its “enforcement discretion” to allow individuals or companies to perform actions that would ordinarily be considered a violation of an environmental law. While EPA’s normal policy is to disfavor use of its enforcement discretion to allow violations, the agency has recognized the special need for “No Action” Assurances memorializing the decision to use its discretionary authority when doing so “is clearly necessary to serve the public interest . . . and [it has] no other [adequate] mechanism . . .” available to address the need. Accordingly, EPA has been willing to use its discretionary authority to allow people to take actions that will speed recovery from major natural disasters.