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Enforcement discretion has long been a standard administrative agency prerogative. Recently, the practice of agency nonenforcement took the stage as nine states and some nongovernmental organizations brought lawsuits against the U.S. Environmental Protection Agency’s (EPA) temporary enforcement policy published amid the COVID-19 pandemic.
EPA COVID-19 Enforcement Policy
On March 26, 2020, EPA Assistant Administrator Susan Bodine released a memorandum titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, which described the EPA’s intention to exercise enforcement discretion for certain potential violations of reporting and monitoring obligations during the COVID-19 pandemic.
The EPA’s temporary enforcement policy applied to nearly every industry in the country and all federally regulated sources of pollution, and it did not provide a termination date at the time of publication.
After the policy’s release, environmental groups and citizens raised concerns about the EPA’s official stance on environmental compliance during this pandemic.
Opposition by Environmental Groups
Shortly after the EPA issued the memorandum, environmental public interest groups led by the Natural Resources Defense Council (NRDC) filed an Administrative Procedure Act (APA) claim against the EPA, which requested that the EPA delay implementation of the rule for 15 days.
In response to the plaintiffs’ motion for summary judgment and in support of the defendants’ cross-motion for summary judgment, the EPA countered that the “general propositions” made by the plaintiffs were not applicable because the policy was necessarily circumstantial to a national emergency that greatly impacted the workforce and radically limited movement around the nation. NRDC v. Bodine, 1:20-cv-3058 (S.D.N.Y. May 29, 2020) (Nos. 42, 43).
The district court granted summary judgment in favor of the EPA because the plaintiffs were not entitled to the information sought on which their standing claim was based and thus lacked standing. NRDC v. Bodine, 1:20-cv-3058 (S.D.N.Y. July 8, 2020) (No. 58). The district court further held that the 15-day delay at the time suit was brought did not constitute “unreasonable delay” under the APA. The court also referred to the concurrent nine-state action (discussed below) on the substance of the legality of the EPA’s temporary enforcement policy.
In addition to litigation by environmental groups, there was political opposition to the policy.
In an April 21, 2020, letter to the EPA, Frank Pallone Jr. (D-NJ), chairman of the U.S. House of Representatives Committee on Energy and Commerce, stated: “While we recognize that the pandemic presents challenges for compliance and reporting obligations, EPA’s temporary enforcement policy, as currently written, needlessly weakens protections for human health and the environment at a time when they are needed most.” Press Release, House Comm. on Energy & Com., Committee Leaders Demand Changes to EPA’s Policy Relaxing Enforcement During Coronavirus Pandemic (Apr. 21, 2020). The congressman went on to request that the EPA modify its new policy to “[e]stablish an end date to the new enforcement policy”; “[r]equire facilities to notify appropriate authorities, if possible, prior to facility operations creating an acute risk or threat to human health or the environment so that there is sufficient time for appropriate response measures to be discussed, identified and implemented”; “[c]reate greater transparency by posting on EPA’s website documents modifying existing compliance obligations”; and “[e]nsure that agency enforcement staff have sufficient information to determine whether COVID-19 was the cause of any non-compliance.”
Opposition by States
Additional litigation by state attorneys general followed the suit by the environmental groups. In May 2020, the states of New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont, and Virginia filed a complaint that challenged the EPA policy’s alleged “abdication” of primary enforcement responsibilities, including under the Clean Air Act; Clean Water Act; Safe Drinking Water Act; Resource Conservation and Recovery Act; Comprehensive Environmental Response, Compensation, and Liability Act; and Emergency Planning and Community Right-to-Know Act. New York v. EPA, 1:20-cv-03714 (S.D.N.Y. May 13, 2020) (No. 1).
The complaint by the nine states asserted causes of action that the EPA policy was an ultra vires agency action under the APA; was an “abdication of EPA’s statutory responsibilities”; constituted the promulgation of EPA policy without notice and comment contrary to the APA; and was “arbitrary and capricious” policymaking by the EPA. In support of their claims, the plaintiff states further contended that the EPA policy was based on presumptions that regulated entities generally would not be able to comply with current regulations due to COVID-19; was too lenient and removed the incentive for regulated entities to comply with current regulations; was too permissive and open-ended and was essentially an “upfront waiver” of enforcement; and lacked any mechanism to verify noncompliance appropriateness.
The plaintiff states also argued that the EPA’s abdication of its enforcement responsibilities put the health and safety of Americans at risk, especially where certain federal environmental laws did not authorize the EPA to temporarily waive state implementation requirements. This sentiment was reiterated in a June 10 follow-up congressional committee letter to the EPA:
While states are key partners when it comes to enforcing environment and human health protections, it is EPA’s responsibility to make certain states are executing their delegated authorities in accordance with federal law so as to ensure a consistent minimum level of protection nationwide, particularly where states are “philosophically opposed” to enforcement action. Significant decreases from 2008 to 2018 in funding and staffing levels at many state environmental agencies further underscores the need for robust federal oversight of state enforcement programs.
Letter from Rep. Frank Pallone Jr., Chairman, House Comm. on Energy & Com., Rep. Peter DeFazio, Chair, House Comm. on Transp. & Infrastructure, & Rep. Betty McCollum, Chair, House Comm. on Appropriations Subcomm. on Interior, Env’t, to Andrew Wheeler, Adm’r, U.S. Env’t Prot. Agency (June 10, 2020).
In New York v. EPA, the harms claimed by the plaintiff states included injuries to their proprietary interests (e.g., forcing states to expend already strained state resources to attempt to fill the void); informational interests (i.e., states and their citizens have the statutory right to obtain compliance monitoring reports, which are at the heart of the EPA policy); and substantive interests (i.e., the policy undermined the important function of deterring noncompliance with substantive environmental law requirements and would likely lead to an increased release of pollution harmful to public health and the environment).
Routine agency nonenforcement is permitted and necessary when such discretionary policies remain internal. Does that change when those discretionary decisions are prospectively disclosed to the regulated community? How would such disclosures affect concerns of separation of powers and basic notions of fairness and administrative regularity? Discretionary authority to determine when the law should and should not be enforced can be put to good end and may preserve limited public resources but can also be subject to abuse, and it can be unclear where the line should be drawn.
The EPA was accused of catering to business interests with the drafting of the enforcement policy. Complaint at 7, New York v. EPA, No. 1:20-cv-03714 (S.D.N.Y. May 13, 2020). Are the dangers of prospective disclosure more apparent under the current political landscape? “This danger comes to the forefront when agencies deliberately engage in nonenforcement for self-aggrandizing reasons, especially to obtain ends that are outside of the agency’s statutory authority. But the risk of abuse also can arise in more mundane situations, for instance, where agency officials, perhaps unconsciously, play favorites.” Aaron L. Nielson, "How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation," 93 Notre Dame L. Rev. 1517 (2018).
Addendum on Termination
A major concern raised by the plaintiff states and other opponents to the EPA policy was the policy’s lack of a clear termination date as opposed to time-limited, “no action” assurances tailored to specific industries and circumstances. The EPA ultimately addressed this concern in its June 29, 2020, “Addendum on Termination,” setting August 31, 2020, as the termination date.
The plaintiff states indicated their intention of dropping their federal suit if the EPA did indeed terminate its policy as planned, which it did. On September 9, 2020, the plaintiff states filed a notice of voluntary dismissal of their suit.
In a motion for preliminary injunction filed on June 8, 2020, the plaintiffs claimed that the EPA policy, if not vacated before it could be set aside by a final judgment, would result in increased pollution that would cause irreparable harm to the states. The plaintiffs continued to reiterate that the EPA policy was a justiciable final agency action; exceeded the EPA’s statutory authority (ultra vires and abdication); was arbitrary and capricious (i.e., the EPA failed to consider the impacts of noncompliance on public health and safety); and violated APA notice and comment requirements. Pursuant to a motion for extension of time on July 13, 2020, the EPA’s response in opposition was not due until September 9, 2020—but because the EPA policy was terminated, the plaintiffs’ suit was dismissed, so the court did not have to deal with these sticky issues.
However, given the record-breaking infection rates of COVID-19 in the United States, the future of the EPA enforcement policy is uncertain. The Addendum on Termination reserves the EPA’s right to “exercise enforcement discretion on a case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID-19 public health emergency, before or after the temporary policy is terminated.” Thus, this termination may have satisfied concerns about the open-ended language of the EPA policy, but it also restates the EPA’s enforcement discretion going forward.
On June 29, 2020, the EPA responded to the congressional committee, reiterating that the temporary policy was not self-implementing; the burden was on the regulated entity to prove to the EPA that compliance was not reasonably practicable due to COVID-19; and absent proof that compliance was not feasible, considerations for enforcement discretion would not be met. Letter from Susan Parker Bodine, Assistant Adm’r, EPA, to Frank Pallone Jr., Chairman, House Comm. on Energy & Com. (June 29, 2020).
The EPA asserted that the enforcement program remained very active: from March 16 to June 25, the agency opened 87 criminal enforcement cases, charged 27 defendants, initiated 275 civil enforcement actions, concluded 296 civil enforcement actions, secured $25.4 million in Superfund response commitments, and obtained commitments from parties to clean up 130,783 cubic yards of contaminated soil.
The EPA explained that compliance was still monitored: facilities that did not submit reports must use a special COVID-19 code instead. According to the EPA’s letter, of the 49,600 facilities with Clean Air Act permits, only approximately 300 had used the special COVID-19 code.
Now that the EPA has terminated the enforcement-forgiveness aspects of the policy, the agency should consider assuaging the concerns of detractors of the policy by using enforcement resources to verify that those who took advantage of the policy complied with the policy’s documentation and other record-keeping requirements and to apply appropriate enforcement measures for those that failed to do so. See EPA Memorandum from Susan Parker Bodine, Assistant Adm’r, EPA, to All Governmental & Private Sector Partners, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program: Addendum on Termination (June 29, 2020); see also Richard E. Glaze Jr., Be Prepared for Imminent Termination of EPA Enforcement Discretion Policy, Lexology (Aug. 31, 2020).
The agency also might evaluate environmental impacts from entities that did not comply with permit and other compliance obligations to determine whether the concerns of critics of the policy’s implementation were justified.
A number of questions are unlikely to be addressed by any still-pending litigation but are nevertheless relevant.
For example, given that enforcement of environmental laws depends largely on authorized states, how much responsibility should be placed on the states to fill enforcement voids caused by federal nonenforcement policies?
Issues regarding standing are also important aspects of the discussion. A question raised by NRDC v. Bodine is whether states have standing to bring claims for prospective environmental harms caused by the EPA’s derogation. The court in Bodine rejected associational standing claims brought on behalf of interested group members because the injuries claimed were insufficiently concrete and therefore speculative; the injury-in-fact (case and controversy?) issue certainly would have arisen, though, if the case by the plaintiff states had moved beyond the initial dispositive filings stage.
Opponents of the EPA’s policy may claim that the EPA set dangerous precedent for nonenforcement of its regulatory duties. However, this pandemic is unprecedented and therefore minimizes this concern. The uniqueness of the pandemic makes this and many other concerns arguably overblown. Furthermore, the fact that the EPA policy now has been terminated perhaps moots any of the pending arguments—unless and until a similar or analogous federal policy is issued. Beyond these policy implications, as the regulated community resumes operations in circumstances where arguably a “new normal” has now developed, at what point should force majeure become inapplicable as a defense for noncompliance if the occurrence could be anticipated or avoided with reasonable diligence?
With the continued uncertainties from COVID-19, and the influence of political undertones and federalism, it may be perceived as unfortunate that the legality of prospective agency notice of discretionary enforcement will not get a closer look by the courts. Is it a viable cause of action for any aggrieved person to claim that a government agency has abdicated its statutory responsibilities? When, if ever, can noncompliance due to a widespread force majeure circumstance be prospectively forgiven? Can an agency prevail on a claim of dereliction of duty against another agency that has overlapping responsibilities? Can enforcement of regulatory responsibilities be compelled by mandamus, or is enforcement too discretionary?
As this heated debate dies down and the EPA policy is no longer being applied, the focus is now likely to be on potential environmental harm that occurred during the implementation of the policy. While resolution of these interesting legal issues may have been postponed indefinitely, the stakeholders in these disputes certainly have many other environmental compliance and enforcement challenges.
Charles M. Denton, Richard E. Glaze, and Ashley E. Parr are attorneys with Barnes & Thornburg LLP, practicing in Michigan, Atlanta, and Chicago, respectively. The authors gratefully acknowledge the research and drafting assistance from Indiana University law student Khoa D. Trinh.
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