With all the talk of the "new normal" brought about by the coronavirus pandemic, we cannot lose sight of how government policies and heavy industry continue to force certain populations and communities into a persistent existential nightmare. Polluted air, poisoned water, the threat of chemical explosions – these are all unjust realities that many marginalized and vulnerable Americans face all the time that are even more concerning in the midst of the COVID-19 pandemic.
Nothing could make these injustices more outrageously apparent and dangerous than EPA’s signaled retreat on environmental standards and enforcement, which cravenly takes advantage of the global pandemic and a rapidly expanding economic collapse. On March 26, Susan Bodine, EPA's Assistant Administrator for Enforcement and Compliance Assurance, issued a memo outlining the agency's sweeping, temporary enforcement policy. Advocates, scientists, and communities almost immediately objected, and in a few days’ time, environmental organizations filed a legal petition demanding the agency walk back the policy and craft something far narrower.
Of course, EPA must adjust its enforcement policies to be responsive to the COVID-19 pandemic, with a particular view to protecting its employees and other workers from exposure to the disease. However, instead of signaling a free pass for polluters, the agency must unequivocally require compliance with environmental standards while working with companies to accommodate and resolve actual, documented challenges to their ability to comply with our environmental and public health laws – of the sort the agency offers in its instructions to public water systems.
All this work requires transparency and meaningful, proactive notice and support to affected communities, especially those already disproportionately burdened by harmful pollution and lack of access to health care. In particular, air pollution, unfettered by monitoring and controls, is a priority concern for fenceline communities, given the link between chronic respiratory illness and increased risk of harm from COVID-19.
The EPA enforcement memo is yet another example of a failure of leadership by the Trump administration. It sends a nationwide message that noncompliance will be excused while the agency abandons it duty to protect citizens from public health and environmental hazards.
EPA's policy also foists enforcement responsibility onto increasingly beleaguered state agencies. This is all the more reckless given that state leaders are focused 24-7 on emergency response to the pandemic and are likely unable to fully watchdog and mount a response to acute environmental risks and imminent threats. Contrary to messaging from EPA, past administrations did not issue a wholesale waiver of environmental monitoring requirements during previous disasters. In fact, in some cases, such monitoring was amplified to ascertain certain disaster-driven pollution risks.
EPA's temporary enforcement policy should be revised without delay, which can be done without sacrificing the reasonable flexibility that the agency already exercises in its enforcement. EPA should be explicit that it will excuse monitoring or compliance failures only if the company can show that the failure was a direct result of the pandemic. The agency should also clarify that operators must compile the data necessary and appropriate to demonstrate that any non-compliance was caused by the pandemic. Such a showing should be made in writing to EPA and state regulators within a defined period, and all such showings should be subject to timely and complete public notice.
To achieve this outcome, federal and state regulators should determine that for facilities in operation, all personnel who conduct self-monitoring and reporting are considered essential employees and that self-monitoring and reporting are an essential and mandatory function of those facilities. Regulators should presume an operator’s culpability for any failures to carry out those monitoring, reporting, and pollution control requirements until proven otherwise.
Coordination of public notice by federal and state regulators is especially critical at this time. The public has a right to know about the threat of pollution in order to mitigate their risks, and public disclosure can have a deterrent effect against inexcusable failures to comply or bad-faith efforts to avoid enforcement. However, the agency’s temporary policy fails to set adequate and clear expectations for public notice of acute risks and imminent threats. Further, the policy should also explicitly account for how public notice must be responsive to the circumstances that citizens and regulators find themselves in during the pandemic, sheltered and working from their homes.
EPA should take a lead role in gathering, coordinating, and distributing regulatory compliance information to industry, state regulators, and the public at large, serving, in part, as a clearinghouse with oversight responsibility for the data described in the agency’s temporary policy. To this end, the policy should be revised to require states to maintain centralized files of reports of noncompliance during the pandemic, as well as those agencies’ own public notifications in response to, for example, force majeure claims, noncompliance with monitoring and other required reporting, and failures of emission controls, unpermitted discharges, and emergency bypasses.
Beyond EPA, Members of Congress need to act quickly to exercise their oversight authority, whether or not the agency’s temporary enforcement policy is revised or retracted. This is necessary to monitor EPA’s implementation of its enforcement policies but also to hold the administration more immediately accountable for inconsistencies and gaps in its stated policies. For example, in Section III of the memo, Bodine indicates that federal resources will be largely focused on “situations that may create an acute risk or imminent threat to public health or the environment.” However, elsewhere in the memo, EPA pins the response for such episodes on the states.
All that said, the EPA memo does not merely add insult to injury for fenceline communities. Rather, the agency recklessly provides cover for polluters to cause real and lasting physical harm in these communities during the pandemic. There is a psychological terror, too, in waiving compliance with monitoring. Families will wonder for years if unreported pollution caused lasting harm or contributed to COVID-related deaths. Neither the temporary policy nor any prospective revisions, retractions, or, congressional oversight change the circumstances on the ground. While environmental regulators work from home and scale back routine inspections, community leaders and environmental advocates should also safely continue monitoring industry’s compliance and exercise their own oversight with public records requests for industry self-reporting and compliance waivers.