By Erin Miller
On Thursday, March 26, 2020, the EPA released a statement explaining that they will stop enforcing environmental regulations because of the COVID-19 pandemic. This unprecedented decision to put in place a temporary policy which gives the EPA discretion to refrain from enforcing civil violations during this pandemic will certainly have long lasting effects in environmental law. In a time when the Trump administration should be focusing on the health and welfare of all Americans, it is instead ramping up efforts to continue to roll-back environmental protections across the board.
Susan Parker Bodine, the EPA Assistant Administrator for Enforcement and Compliance, sent a memorandum to all governmental and private sector partners explaining the agency position. The ‘temporary’ policy applies retroactively to March 13, 2020 and the EPA “will apply this policy to actions or omissions that occur while this policy is in effect even after the policy terminates.” EPA states throughout the memo that they expect all regulated entities to continue to operate safely to protect the public and environment. The policy explains that regulated entities should self-regulate, self-report, and not pollute. If regulated entities’ operations fall into non-compliance during this time, the EPA will consider any circumstances that may explain their failure to comply, including the COVID-19 crisis.
This policy puts in place legal loopholes for entities to commit civil violations for the foreseeable future without penalty or punishment. Part I. A of the memorandum lays out the procedure regulated entities should follow if compliance is ‘not reasonably practicable.’ Facilities with environmental compliance obligations simply have to identify and document the noncompliance, return to compliance as soon as possible, and identify how COVID-19 was the cause of noncompliance. This policy is giving a legal ‘out’ for civil violations, allowing regulated entities to explain away their infractions as the result of a global public health pandemic. Policies like this one, with no sun-down provisions in place, will allow facilities across the United States to violate Federal regulations. Considering the EPA regulates and enforces violations across numerous industries, the U.S. is facing an environmental health crisis due to the accumulation of violations allowed under the new policy.
This administration has systematically rolled back protections for the environment and public health in the last three years. The EPA’s new policies and regulatory roll-backs make it increasingly difficult to enact new environmental and public health legislation based on scientific data under the guise of ‘strengthening transparency in regulatory science.’ The deregulatory ambitions of the Trump administration make it clear that now, more than ever, lawyers who understand science are needed to protect the health and future of this nation. When the COVID-19 pandemic subsides, environmental groups and lawyers will undoubtedly have their work cut out for them. Lawyers in the environmental industry are tasked with interpreting environmental laws and regulations. This administration has drastically altered the environmental law industry by repealing or replacing stringent regulations. When so many Federal Regulations are changed in such a short period of time, environmental lawyers have to quickly adjust, learn the new laws, and find ways to fight against the harms that they create. The fight against this global pandemic, while at the top of every nation’s list of priorities, should not supersede the EPA’s authority to enforce civil violations of environmental laws. The EPA’s mission is to protect human health and the environment. The COVID-19 pandemic may not resolve quickly, but that is no excuse to turn a blind eye to the industries and facilities creating more environmental harms. The EPA can and should continue to protect human health and the environment as they have since the agency’s inception.
Economic stability and growth appear to be the only motivating factor for the majority of environmental and public health deregulation taking place over Trump’s tenure in office. The major problem with taking an economic approach to replacing or repealing these important regulatory protections is that in the long run, human health, environmental health, and the economy will all ultimately suffer. Trump chose to fire his entire pandemic preparedness team, which was established in 2015 under President Obama in response to the EBOLA pandemic. When the COVID-19 pandemic began, the administration was left with no one to advise them and resulted in taking took no action.
The worldwide chaos and uncertainty surrounding this pandemic highlight the dire need for lawyers and advocates with a strong understanding of scientific information. If there is to be any hope of undoing the damage this administration aims to inflict on environmental and public health protections, the legal community must learn to better collaborate with the scientific community at large. There are a number of ways that we can change the legal landscape for the current and future generations of legal experts.
There are a number of excellent law schools across the nation with environmental law programs. Expanding the number of schools with these types of programs would be a great place to start. Additionally, law schools with strong environmental and public health law programs should consider re-focusing their recruiting efforts by targeting students involved in STEM programs during their undergraduate studies. By recruiting a new base of scientifically minded advocates into environmental law programs, we can ensure that a new generation of legal minds will be in place to confront and help manage the environmental and public health crisis that are plaguing this country. Obviously, this does not account for lawyers who wish to work for large corporations and potential administrations that seek only to increase profits to the detriment of the environment and human beings.