Earlier this week President Trump issued an executive order aimed at bolstering economic recovery as businesses reopen. This has potential for marked effects on environmental enforcement in light of how the Environmental Protection Agency and the Department of Justice have already been adapting environmental priorities in the face of the pandemic.
On May 19, President Donald Trump issued an executive order (EO) that instructs agencies to address the economic effects of the COVID-19 pandemic and reopening businesses by providing enforcement and regulatory relief. The EO applies to federal agencies, including the Environmental Protection Agency (EPA) and the Department of Justice (DOJ). The EO has particular implications for environmental enforcement given EPA’s early moves on issuing guidance related to the pandemic.
The EO directs agencies to promote regulatory relief during reopening of the economy from state or local stay-at-home orders:
- Enforcement Discretion: Section 4 of the EO specifically contemplates agencies exercising “appropriate temporary enforcement discretion or appropriate temporary extensions of time,” which are measures that likely need not be specifically allowed under statute.
- Pre-Enforcement Rulings: Section 5(a) refers to agencies accelerating the pre-enforcement rulings allowed under EO 13892, dated October 9, 2019, whereby a regulated party can request a decision from an agency as to whether proposed activities comply with the law.
- Compliance Recognition: Section 5(b) also prompts agencies to issue guidance to the regulated community as to how each agency plans to “decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling.”
- Economic Response: Agencies are directed generally under Section 3 “to support the economic response to the COVID-19 outbreak” and “to promote economic recovery through non-regulatory actions.”
- Rescission and Waiver of Regulatory Requirements: Section 4 requires agencies to formally identify and invoke emergency authority under current law to modify existing regulatory requirements.
- Consideration of the Principles of Fairness: Section 6 expressly directs agencies to revise their procedures in administrative adjudications to, among other things, reflect that the government bears the burden of proving an alleged violation rather than the subject of compliance being required to prove compliance.
At a minimum, the new EO provides a basis for arguing for COVID-19 relief in enforcement proceedings, including in negotiating settlements. In that regard, it remains to be seen how the new EO will intersect with EPA’s March 26 general guidance for COVID-19 and related program-specific guidance on issues such as remediation. Note that EPA’s March 26 general COVID-19 guidance is subject to litigation in the Southern District of New York, filed by various state attorneys general and environmental organizations, with briefing underway. Those cases are New York v. EPA, No. 20-cv-03714 (S.D.N.Y May 13, 2020), and Natural Resources Defense Council v. Bodine, No. 20-cv-03058 (S.D.N.Y. Apr. 16, 2020).
In considering potential requests for rescission and waivers of rules, federal agencies may need to distinguish regulatory requirements that are a specific burden on reopening the economy from those that generally have costs with compliance. Moreover, agencies would likely assess whether a rescission or waiver request fell within its existing regulatory discretion rather than requiring an amendment through the notice-and-comment rulemaking process. Industry engagement therefore will be important in providing EPA an adequate record on which to make its determinations.