The Environmental Protection Agency (“EPA”) has taken a sweeping decision on the 26th of March that is heavily criticized among environmentalists. According to the memo, entities will face minimum environmental compliance standards of EPA for the duration of coronavirus (COVID – 19) pandemic.
The memo, which will be effective from 13th of March until further notice, states that this relief does not apply to criminal violations. However, on the side of civil obligations, the memo states; entities should make every effort to comply with their environmental compliance obligations. If compliance is not reasonably practicable, the entities will not be penalized.
The memo sets out obligations such as; acting responsibly to minimize the effects of noncompliance, identifying how COVID-19 was the reason for noncompliance, and return to compliance as soon as possible. This relief is very vague since EPA grants themselves a very flexible room to interpret entities’ actions.
Other than a general civil violation clause, the memo contains a clause focused on routine compliance monitoring and reporting by the entities. EPA recognizes the fact that pandemic may cause entities to be unable to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. If EPA agrees this inability was a result of the pandemic, it will not be seeking penalties against the entities. For example, if an entity was required to take monthly samples of water and analyze them for some chemicals, they may contain it because of their actions. They send these water samples to a third-party laboratory to analyze its contents.
Still, the laboratory has shut down temporarily due to the outbreak, and finding another laboratory of that size which is still operating even though there is an outbreak would be very time consuming and inefficient, it would not be reasonably practicable to force entities to find another laboratory. Therefore, even though they are non-compliant, the entity would not be penalized.
However, not only that, compliance monitoring standards will not be penalized indefinitely, but EPA will also not require entities to keep records of these months’ activities to test them after the pandemic is over. It might result in vast non-compliant activities for the period since even though the general clause requires entities to try their best to comply, EPA will not receive the necessary tests to compare with the entities’ prior monitoring to find out if they were even trying to comply with the standards.
Cynthia Giles, who headed the enforcement office of EPA during the Obama administration, called it a moratorium on enforcing the nation’s environmental laws and an abdication of the agency’s duty. One could say that meanwhile, this is an abdication of the agency’s duty; it is also ignoring the environmental laws and ridiculing the intention of lawmakers. Although the world is now in a force majeure, the branches of the government must still consist in an auditory manner between each other.
The executive power should not be able to temporarily disable a law that has passed through two legislative organs in a country that is operated under separation of powers. Some environmentalists expect courts to limit entities’ non-compliant behavior even if the EPA does not penalize them.
According to The Guardian, “The relaxation of environmental laws follows lobbying from the American Petroleum Institute, an oil and gas industry group, which sent the EPA a letter two weeks ago calling for the suspension of rules requiring repair of leaky equipment as well as monitoring of pollution.”
Furthermore, according to The Hill, before this memo, the oil industry has asked Trump administration to lessen regulations because of the coronavirus outbreak. Therefore, a 10-day lobbying activity might have resulted in unfathomable and undetected destruction to the environment for 3-4 months, or it might create a breathing room for the economy with minimized side effects, prior looks more plausible than the latter.
Lastly, according to some scholars, this action is inconsistent in itself because of the symptoms of COVID-19. These scholars claim damaging the environment and causing air pollution might cause further damage to COVID-19 patients, people with asthma or anyone else that could suffer more and more from respiratory damages since one of the main symptoms of coronavirus is breathing problems, which could lead to other problems with further air pollution.