Recent Agency Memoranda Impact Enforcement Of Environmental Violations

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The U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Justice (“DOJ”) have recently issued memoranda concerning civil enforcement of violations, including violations of environmental laws.

The January 22, 2018 EPA memorandum, entitled “Interim [Office of Enforcement and Compliance Assurance] Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States,” provides interim guidance on a collaborative partnership between EPA and authorized States in their compliance assurance activities. The document lays out plans for collaboration by EPA and States to meet and share information on environmental compliance issues. Further, the memorandum specifies that, with respect to inspections and enforcement, EPA will generally defer to authorized States to handle the primary day-to-day implementation of their programs.

The January 25, 2018 DOJ memorandum, entitled “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases,” provides that DOJ may not use its enforcement authority to convert agency documents into binding rules, and DOJ litigators may not use non-compliance with agency guidance documents as a basis for proving violations of law or treat lack of compliance as a presumption of a violation. DOJ may continue to use agency guidance documents for other purposes. This will reduce the environmental compliance burden on companies who previously sought to comply not only with clearly mandatory laws and regulations but also with advisory guidance documents, and keep the Department in check when seeking to use those guidance documents in negotiating penalties for violations.

The policies announced by this memoranda are unsurprising given the current political climate in which EPA Administrator Scott Pruitt and President Trump seek to reduce EPA responsibilities and shift environmental duties to the States and to minimize the burdens facing companies.

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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