License to Pollute

“An Open License to Pollute”: The EPA Has Halted Enforcement Due to COVID-19

REBECCA LEBER

In a wildly cynical turn of events, the Environmental Protection Agency has decided to broadly waive environmental law because of the coronavirus pandemic.

On Thursday, the EPA’s head of enforcement Susan Bodine sent a letter to “All Governmental and Private Sector Parties.” It amounts to a free pass for all the entities that the EPA normally regulates under the Clean Air and Clean Water Acts. That’s a huge swath of industry, including facilities like refineries and chemical plants—the same types of sites that can trigger asthma attacks—even as these plants continue to operate during the pandemic. The guidance retroactively applies beginning March 13. The memo says:

The EPA regional office will evaluate whether an applicable permit, statutory, or regulatory provision addresses the situation. The EPA’s Office of Enforcement and Compliance Assurance (OECA) will work with program offices on nationwide issues that may arise. If there is no permit/regulatory provision that addresses the situation, the EPA will work with the facility to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible.

This opaque language basically means the EPA is ceding its federal authority to state offices and deferring to the polluters, even on issues that could pose an “imminent threat” to public health or the environment. Cynthia Giles, associate administrator of EPA enforcement under Obama, said in a statement, “EPA should never relinquish its right and its obligation to act immediately and decisively when there is threat to public health, no matter what the reason is. I am not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”

The EPA will also stop requiring monitoring, so we won’t even know what the effects of this policy will be:

In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.

Last Friday, the oil lobby American Petroleum Institute requested regulatory relief from President Donald Trump, citing concerns for workers and limited numbers of staff due to the outbreak.

Giles said Thursday’s memo “is essentially a nationwide waiver of environmental rules for the indefinite future. It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ’caused’ by the virus pandemic.”

Giles isn’t the only former EPA staffer who is furious. “This is an open license to pollute,” Obama’s EPA administrator Gina McCarthy, who now heads the Natural Resources Defense Council, said in an emailed statement.