EPA Plans To End Controversial COVID-19 Enforcement Policy

By Hailey Konnath
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Law360 (June 30, 2020, 6:36 PM EDT) -- The U.S. Environmental Protection Agency on Monday said it would be ending its controversial policy that suspended monitoring and reporting requirements for certain entities during COVID-19, according to a memorandum from the agency.

The policy, which was put in place in March, has drawn criticism from conservation groups who say it gives polluting industries discretion to determine whether to comply with requirements under laws such as the Clean Water Act, Clean Air Act and Safe Drinking Water Act and threatens already imperiled species. A coalition of nine states led by New York sued over the policy in May.

EPA Assistant Administrator Susan Bodine said Monday that the policy would end Aug. 31, citing the relaxing or lifting of state and local social-distancing restrictions. As those restrictions ease, "so too may the restrictions that potentially impede regulatory compliance, reducing the circumstances in which the temporary policy may apply," she said.

The August termination date recognizes that the circumstances are changing but also provides adequate time to adjust, according to the memorandum. Bodine revised the policy to include a provision on termination, which noted that the policy could end earlier if the circumstances call for it.

"As stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID-19," Bodine said. "These situations should become fewer and fewer."

A trio of House Democrats on Tuesday praised the move, saying in a joint statement that it had "no business being put into effect."

Reps. Frank Pallone Jr., D-N.J., Peter DeFazio, D-Ore., and Betty McCollum, D-Minn., said in the statement that the policy "gave license to companies to violate our environmental laws and needlessly weakened public health protections at a time when they were needed most."

"While we're glad the Trump EPA finally responded to our repeated demands to end this reckless policy, the agency either doesn't know or will not reveal its impacts to either Congress or the American people," the representatives said. "We will continue to conduct oversight until EPA answers for this and all of its failed policies."

The EPA issued the temporary policy to various state, tribal and local government partners in response to potential worker shortages and travel restrictions. The pandemic could limit how they can carry out reporting obligations and other requirements, the EPA said at the time.

It generally divides compliance obligations into two tiers: businesses that show they can't meet routine compliance monitoring and reporting requirements are given significant leeway while those at risk of allowing discharges or emissions that could damage health and the environment are scrutinized more closely.

Earlier this month, the Center for Biological Diversity, Waterkeeper Alliance Inc. and Riverkeeper Inc. said they intended to challenge the policy in court, saying the EPA failed to take necessary and reasonable steps to ensure it wouldn't jeopardize endangered species. The conservation groups also claimed the EPA failed to respond to Freedom of Information Act requests for all communications with the American Petroleum Institute and others that resulted in the policy, according to the group's announcement.

In the states' suit over the policy, they said it incentivizes industrial pollution at a time when low income and minority communities, in particular, are also suffering disproportionately from COVID-19. Aside from New York, the states challenging the policy are California, Illinois, Maryland, Michigan, Minnesota, Oregon, Virginia and Vermont.

Richard Webster, the legal director for Riverkeeper, said in a statement Tuesday that the organization is pleased that the EPA will withdraw the policy.

"Its withdrawal at the height of the COVID-19 epidemic further illustrates that it was entirely arbitrary and unnecessary in the first place," Webster said. "We will continue to remain vigilant until it is actually withdrawn and we will continue to contest any similar abdications of EPA's duty to enforce environmental laws in the future."

Jared Margolis, an attorney with the Center for Biological Diversity, told Law360 that the organization remains concerned about the unregulated and unreported pollution that occurred while the policy was in effect and the EPA's "complete failure to ensure that such pollution will not jeopardize imperiled species."

"[T]he EPA policy does not require polluters to 'catch up' with reporting, so there is no way for it to know whether habitat for endangered species has been adversely affected," Margolis said. "We have provided notice to EPA of its violation of the Endangered Species Act, and will need some time to now consider our options moving forward."

Counsel for the Waterkeeper Alliance and the coalition of states didn't immediately return requests for comment Tuesday.

--Additional reporting by Kelly Zegers, Joyce Hanson and Juan Carlos Rodriguez. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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