Holding Polluters Accountable in Times of Climate and COVID Risk: The Problems with 'Emergency' Enforcement Waivers

Abstract

One of the first actions of the Environmental Protection Agency after the declaration of the COVID-19 crisis in mid-March 2020 was to announce that it would relax its enforcement policies with respect to environmental reporting and violations during the time of the pandemic. Ostensibly this was to ensure that regulated entities were not penalized by their inability to have inspectors on the front lines to ensure that substantive permit and monitoring requirements were followed. Taking their lead from the EPA, many states announced that they were following suit.EPA always has discretion in terms of enforcement, but in making a blanket announcement, the agency created the space for substantial pollution and health risk from lack of adequate compliance in the regulated communities. It is hard to know what harms exist when reporting requirements are waived. This also sent the message that environmental protection is not a “critical function” which it should be at all times.After climate induced disasters, federal and state agencies have done the same thing, abusing the “emergency” exemption privileges to give a broad non-compliance pass to regulated industries. The uproar of the enforcement pause during the COVID-19 epidemic has shown a light on the abuse of enforcement discretion in disasters which are becoming more frequent with climate change.This article examines the legal basis of emergency exemptions, provides examples of how they have been abused in climate related disasters and the COVID-19 epidemic, and proposes solutions to curtail the abuse of these exemptions while still accounting for genuine emergency conditions.