This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).
The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.
EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of COVID-19. The policy allowed polluters that asserted COVID-19 prevented them from monitoring and reporting their own pollution to refrain from doing so without penalty.
Many of the largest regulated polluters, such as refineries and chemical plants, were designated as essential businesses that were to keep operating during the pandemic. But EPA’s waiver policy allowed these companies to send home “nonessential” environmental and safety inspectors whose job it is to protect the public. Only to an agency that devalues pollution impacts and protecting the public does such a policy make sense.
This policy also left EPA and state officials in the dark about where and why polluter self-monitoring had been halted. Many in the oil and gas industry raced to suspend Leak Detection and Reporting, a critical protection against fugitive toxic gas leaks. Without self-measurements, even refinery owners and operators may have been unaware of any hazardous contaminants their plants were emitting.
Strikingly, more than 50 of the facilities that obtained rule exemptions had troubling pre-pandemic records of environmental violations. Waiver petitions from such recidivists should have received the most careful and exacting scrutiny. But in the frenzy to grant passes to polluters under cover of the pandemic, even that sensible safeguard went unobserved.
Following the EPA’s lead, numerous states adopted and implemented unduly lax pandemic waiver policies. Texas granted more than 200 waiver requests, but the Lone Star state was not alone:
These regulatory failures have occurred against the backdrop of a steady decline in both federal and state environmental enforcement. The numbers of government scientists and attorneys whose work focuses on enforcing environmental laws has dropped significantly in recent years. There have also been substantial decreases in the numbers of in-person government inspections of pollution sources, the volume of enforcement actions pursued, the number of environmental criminal investigations, and the amount of money that polluters have been compelled to spend on pollution control as a direct result of enforcement activities. EPA has all but abandoned its longstanding oversight of state enforcement work. And the federal agency has cravenly deferred to state enforcement (or nonenforcement) priorities, even though quite a few states lack the resources and/or political will to effectively enforce environmental standards.
Howls of protest and a federal lawsuit prompted EPA to terminate its COVID policy as of Aug. 31. But too much damage has already been done.
How do we move forward, even as the pandemic continues? Several measures are urgently needed to reinvigorate environmental enforcement in the United States. Certainly any overtly fraudulent suspension applications must be identified and be the basis for strict enforcement measures. Though we may never know the full scope of the damage, any available data collected by the regulated entities or the public during the enforcement suspension should be scrutinized to ensure that harms aren’t continuing. More federal and state money must be allocated to environmental enforcement work — and the size of EPA grants to state agencies must be meaningfully increased. The EPA and the states must devote time and energy to recruiting new enforcement professionals and support staffs. And — importantly — environmental agencies must upgrade the training they provide for newly hired staffers so mistakes by inexperienced rookies will be minimized.
Protecting government and private-sector employees from disease is unquestionably a legitimate and worthwhile goal. However, employee protection should not be used as an excuse to suspend government enforcement of critical environmental safeguards. The health of all Americans requires nothing less.
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Joel A. Mintz, Victor Flatt | September 17, 2020
The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests.
Rena Steinzor | September 16, 2020
Presidents since Ronald Reagan have endorsed the assumption that government is too big and too intrusive. Yet the figurative poster children targeted by these chill words have been public health agencies heavily dependent on science-based decision-making as opposed to—as just one example—the U.S. Department of Homeland Security. No president has spent any concerted amount of time explaining how protective public health interventions, including regulation, make life better. No president has praised the civil servants who weather seemingly endless—and enervating—disputes over science and law that make it possible to deliver those protections. For the sake of the civil service and its broken morale, and for the American people, who are exhausted and rendered hopeless by the indiscriminate attacks on the government’s competence to keep the population safe, the next president should use the bully pulpit to advance a positive narrative about government’s accomplishments.
Joel A. Mintz | September 15, 2020
As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements -- and citizen suits more generally -- interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.
Joel A. Mintz | September 14, 2020
Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.
Matthew Freeman | September 9, 2020
CPR Board President Rob Verchick is out with a new episode of the Connect the Dots podcast, the first in a new season focused on climate justice. As he puts it, "We’re looking at people living in the cross hairs of climate change, those disproportionately carrying the burden of the world and suffering on a daily basis."
Rena Steinzor | September 8, 2020
As the country prays for relief from the global pandemic, what have we learned that could help us protect the environment better? Most alarming, I would argue, are COVID-19's revelations about the power of conspiracy theories and the antipathy they generate toward scientific experts.
Katlyn Schmitt | September 3, 2020
In the absence of meaningful action by OSHA, more than a dozen states, including Virginia, have issued emergency safety measures to protect essential workers from the risks of COVID-19. But Maryland – home to one of the largest poultry industries in the nation – is glaringly absent from that list.
Matthew Freeman | September 1, 2020
Writing in The Hill, CPR's Bill Buzbee and Mažeika Patricio Sullivan expand on a point they and their co-authors on an important article in Science magazine in August made ably: The Trump administration is running roughshod over science and law in its efforts to deregulate.
Alejandro Camacho, Robert L. Glicksman | August 27, 2020
Throughout his time in office, President Donald J. Trump has boasted about cutting regulations. His antagonism to environmental regulation has been particularly virulent and incessant. By one count, Trump Administration agencies have initiated or completed 100 environmental rollbacks. By thwarting often bipartisan legislative environmental protection goals adopted over the course of 50 years, President Trump's actions create serious threats to public health and environmental integrity. The Administration's suppression of public participation in regulatory decision-making has also undercut the ability of people and communities harmed by the Administration's deregulatory frenzy to protect themselves. These anti-environmental and anti-democratic practices converged in the Administration's recent revisions to the Council on Environmental Quality's (CEQ) regulations implementing the National Environmental Policy Act (NEPA).