EPA’s Relaxed Enforcement Amid Virus Draws Mixed State Reactions

Credit: Andrew Harrer/Bloomberg via Getty Images.
The headquarters of the Environmental Protection Agency in Washington.

State regulators are giving mixed responses to the EPA’s relaxed enforcement on a range of environmental obligations by facilities affected by the coronavirus pandemic.

The Environmental Protection Agency said this week it wouldn’t seek penalties for violations covered by the emergency policy.

But most states are involved in the actual day-to-day work of enforcing environmental permitting programs based on federal rules and policies. So, while some states plan to defer to the EPA’s latest guidance, others indicated they will not.

Different responses from different states will create headaches for companies with operations across the nation, said Joel Gross, who headed the Justice Department’s environmental enforcement section during the Clinton administration.

“This is not one size fits all,” said Gross, now a partner with Arnold and Porter Kaye Scholer. “There are situations where an employer would be more concerned about EPA and situations where you’d be more concerned about the state.”

Companies with multistate operations are already used to dealing with varying enforcement regimes across the nation, Gross said. Even so, the mixed reactions to the COVID-19 pandemic creates an extra level of complication, he said.

Criticism From New York

New York’s environmental regulator trashed the EPA’s guidance on 27 March and said it won’t stop implementing rules.

“The Trump administration is using this public health crisis as an opportunity to allow the US EPA to further abdicate its already-diminishing role in protecting public health and the environment,” Basil Seggos, commissioner of New York’s Department of Environmental Conservation, said in an email.

“Rolling back enforcement of regulations in place to protect the quality of our air, water, and health of our communities is a shameful exploitation of the current public health crisis,” Seggos said.

The Maryland Department of the Environment said it will only grant exemptions from permit requirements on a “more limited, case-by-case, locally tailored basis.”

“We don’t want to lose any momentum for environmental progress in our state or the broader airshed and watershed of the Chesapeake Bay region,” said Ben Grumbles, the state’s secretary of the environment.

The California Environmental Protection Agency said its enforcement authority “remains intact” in spite of the EPA memo.

“CalEPA expects compliance with environmental obligations, especially where failure to follow the law creates an imminent threat or risk to public health,” said Sam Delson, the agency’s deputy director for external and legislative affairs. The agency acknowledges that some companies might need enforcement relief, but Delson said they should contact CalEPA before falling out of compliance.

The Virginia Department of Environmental Quality said it was still reviewing the EPA guidance.

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