Environmental Enforcement in the COVID-19 Era
Ever since the U.S. Environmental Protection Agency (EPA) issued a dangerous (and now-rescinded) policy relaxing enforcement of environmental protections in March, the Center for Progressive Reform has watchdogged responses from state environmental agencies in three states in the Chesapeake Bay Region — Maryland, Virginia, and Pennsylvania.
While the EPA essentially gave companies a free pass to hide pollution violations during the pandemic, most states set up processes to handle COVID-19-related noncompliance. Environmental agencies in Maryland, Virginia, and Pennsylvania received dozens of waiver requests related to water, land, and air quality protections, pollution controls, sampling and monitoring, inspections, and critical infrastructure deadlines.
A majority of these requests were related to the pandemic. But others, such as those seeking to delay important deadlines for construction projects, were not. This suggests that some polluters are using COVID-19 as an excuse to subvert or delay deadlines that prevent further air or water pollution.
Some companies requesting waivers violated environmental standards before the pandemic —highlighting a track record of noncompliance. This could be due to lagging enforcement trends; without fines or penalties, companies have little incentive to abide by environmental laws.
How will states address noncompliance during the pandemic, especially when violations occurred and waiver …
An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.
Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …
Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”
Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.
The groundbreaking 1987 study Toxic Waste and Race in the United States first …
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 …
This is the second post of a two-part set. Click to read Part I.
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.
Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …
This is the first post of a two-part set. Click to read Part II.
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.
In a case pending before the U.S. District Court for the Eastern District of Michigan, United States v. DTE Energy, Inc., the constitutionality of both SEPs and citizen suits in general may soon be at issue. The case began as a typical New Source Review matter in the Obama administration. The U.S. Environmental Protection Agency (EPA) asked the Justice Department to sue DTE on the grounds that equipment updates to some of the company's electric generating …
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the …
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:
More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …
Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.
The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill …
Originally published on Legal Planet. Reprinted with permission.
On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.
One of the EPA proposals is the so-called "science transparency rule," which is perversely designed to limit EPA's future ability to utilize well-regarded scientific studies. The other proposal will reduce the agency's flexibility in conducting cost-benefit analysis of future regulations.
In attempting to find legal authority for these rules, EPA has looked to general grants of rulemaking authority. One such law is the Federal Housekeeping Act. That law (which may not actually apply to …
