COVID-19, Regulatory Developments, Special Topics in Environmental Management

A Look at EPA Deregulation Related to Pandemic Relief EO

Executive Order (EO) 13924, issued in response to COVID-19 by President Donald Trump on May 19, 2020, authorized federal agencies to provide regulatory relief to support recovery of the economy. Trump characterized this order as giving agencies “tremendous power” to cut regulations seen to hinder economic recovery.

white houseSection 4 of the order instructs federal agencies to “identify regulatory standards that may inhibit economic recovery” and urges the agencies to take steps “consistent with applicable law” that include “issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements, and to consider exercising appropriate temporary enforcement discretion or appropriate temporary extensions of time as provided for in enforceable agreements with respect to those requirements, for the purpose of promoting job creation and economic growth….”

Trump indicated that he’d like to see temporary regulatory cuts made in response to COVID-19 become permanent.

“I just want you to go to town and do it right, do it proper, make sure everything is safe, and make sure it’s environmentally good for those of you that are in that category, but it’s very important,” Trump said to agency leaders.

With EPA Administrator Andrew Wheeler being a former coal lobbyist and Trump being pro-business, several governmental watchdog groups have loudly criticized Trump’s deregulation efforts. These groups and others have alleged that the Trump administration is moving too quickly on their deregulation agenda while the nation’s attention is distracted by the coronavirus pandemic.

The White House categorically denied these allegations, citing “the need for speed and efficiency in responding to the pandemic as a key driver of deregulation.”

EO 14924 came at a time when the EPA was already working on sweeping deregulatory actions in response to the Trump administration’s earlier call to action in EO 13771, dated January 30, 2017.

The EPA faced heavy criticism and backlash from various environmental groups when it announced temporary policies on March 26, 2020, regarding the methods the EPA would utilize to enforce routine recordkeeping, monitoring, and reporting violations in response to COVID-19. The announcement was called “an open license to pollute” by Gina McCarthy, president of the National Resources Defense Council and former Obama-era EPA chief.

Wheeler firmly denied these allegations in a statement issued by the EPA in which he asserted the waiver was temporary and retroactive to March 13, 2020.

“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” Wheeler said. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”

The waiver was applauded and defended by industry groups such as the American Fuel and Petrochemical Manufacturers (AFPM) trade association. David Friedman, vice president of regulatory affairs for the AFPM, said the “license to pollute” allegation was patently “false” in a blog post dated April 9, 2020.

Many industries, including the oil and gas industry, feared the pandemic would lead to staffing shortages where additional time would be needed to meet Clean Air Act (CAA) enforcement requirements.

“While industries must continue to comply with all Clean Air Act and Clean Water Act emissions limits and requirements, what the EPA policy allows is reasonable flexibility in monitoring and reporting that may be impacted by and specifically traced back to coronavirus-related events,” Friedman stated. “Relief largely comes in the form of filing extensions, similar to the extension the IRS recently provided all taxpayers.”

Other industry insiders believe the EPA has made continuous positive progress on its deregulation initiatives in spite of COVID-19-related issues and has denied “a number of pandemic-related requests to postpone hearings and extend comment periods,” stated Lawrence Culleen et al. in an article posted on June 9, 2020, titled “United States: Executive Order on Regulatory Relief Issued To Support Economic Recovery.”

Culleen, a Washington, D.C.-based environmental attorney at Arnold & Porter Kaye Scholer LLP, and his partners cited some examples of the Agency’s positive efforts: “ … in the weeks leading up to the declaration, EPA issued a proposal revising regulations governing the disposal of coal combustion residuals in landfills and surface impoundments and rolled back refrigerant management regulations for substitute refrigerants, such as hydrofluorocarbons (HFCs).… EPA has also provided supply chain flexibilities for registrants of pesticide products, reopened the public comment period on proposed interim decisions for neonicotinoid pesticides, delayed various reporting deadlines, and granted retailers additional time to sell non-compliant residential wood heaters.”

Culleen et al. also provided examples of discretion the Agency has exercised in pursuing violations directly associated with the pandemic, such as “companies (that) cannot comply with certain monitoring, testing, sampling, training and reporting regulatory obligations due to the crisis.”

However, there is concern that COVID-19-related delays could hamper the Agency regulatory initiatives. “The longer it takes for EPA to finalize its rules, the greater the chance those rules could be pushed into the Congressional Review Act (CRA) ‘lookback’ period,” Culleen et al. stated. “To the extent that the agency rushes the rulemaking process by providing limited time for public participation or by failing to adequately respond to comments these rules could also be vulnerable to challenges in court.”