Virus Could Bite Into Environmental Enforcement: Ex-Officials
by Stephen Lee & Amena H. Saiyid, Bloomberg on 03-19-2020
The new coronavirus pandemic that is sharply curtailing Americans’ activities may soon limit field inspections from the EPA and Army Corps of Engineers, former federal officials say.
Over time the national self-quarantine “would obviously start to cramp inspections as everyone is being advised to avoid social contact,” said Eric Schaeffer, the former director of EPA’s Office of Civil Enforcement under the Clinton and George W. Bush administrations.
Agency officials stressed Wednesday that their work continues, even with telework provisions and smaller gatherings.
But while much of enforcement work happens remotely, lawyers and officials say measures requiring social distance will soon start to take a toll as inspectors shun field visits and companies curtail hours.
And at least one lawyer said his phone already is ringing “off the hook” with clients seeking to delay environmental permit obligations.
‘Continuing Our Mission-Critical Function’
For now, the Environmental Protection Agency’s offices remain open across the country, according to Corry Schiermeyer, an agency spokeswoman. The EPA this week authorized telecommuting and voluntary unscheduled leave for all its eligible workers across the country.
The EPA also said Tuesday that it “is taking appropriate steps to ensure the safety of EPA employees and members of the public with whom they may interact while continuing our mission-critical function to protect the public from threats to human health and the environment arising from violations of environmental laws.”
Similarly, Corps spokesman Doug Garman said his agency “will continue to meet its regulatory program mission, while being mindful of the guidelines and recommendations for social engagement.” The Corps doesn’t anticipate that the public will defy regulations governing waters and wetlands, Garman said.
The EPA issues and oversees permits for releases of pollution into air, water and land. It also oversees the permits the Corps issues to allow dredging of wetlands and streams to build homes, roads, and mines.
The White House Office of Management and Budget issued guidance March 15 instructing federal agencies to offer “maximum telework flexibilities” to all eligible employees, “consistent with operational needs of the departments and agencies as determined by their heads.” And President Donald Trump the next day released national guidelines instructing Americans to avoid gatherings of more than 10 people.
Enforcement Not Priority?
Cynthia Giles, who headed enforcement at the EPA under President Barack Obama, said the nationwide self-quarantine measures could cut into the number of inspectors venturing into the field. It could also mean less capacity to do lab tests on samples, because lab work can’t be done from a technician’s home, Giles said.
And a prolonged work-from-home policy could make it harder for EPA inspectors to take necessary follow-up visits, according to Giles.
“I expect that states are in the same boat, so enforcement reductions are very likely at the federal and state levels both,” she added.
The vast majority of inspections are done by state officials, not by the EPA, noted Jeff Holmstead, a partner with Bracewell LLP who was the agency’s assistant administrator for air and radiation during the George W. Bush administration.
The EPA’s inspection rate was already trending down before the coronavirus struck. Last month, the EPA said it conducted 10,320 inspections in 2019, its lowest level in at least a decade.
“Enforcement has just not been a priority of this administration, and I don’t see that changing any time,” said Christine Todd Whitman, the former governor of New Jersey who led the EPA under the George W. Bush administration. “To the extent that [the EPA] can ignore it now and have a pretty good claim as to why, I think they will.”
For now, only a few days into nationwide social distancing, environmental lawyers say they’re not seeing any changes in the federal government’s enforcement.
Neal McAliley, an environmental attorney with the Miami office of Carlton Fields LLP, said he’s involved in three enforcement cases involving the EPA, the Army Corps, and state environmental agencies.
“We are still scheduling calls, exchanging emails,” McAliley said. “Nothing has stopped the work flow.”
Opportunity to Cut Corners?
Brian Israel, a former trial attorney at the Justice Department’s environmental enforcement section during the Clinton administration, said his practice hasn’t changed, either. But his phone has been “ringing off the hook” with corporate clients wondering if they can get dispensation from the EPA to delay permit obligations that don’t create an imminent risk, such as testing groundwater levels, because their contractors don’t want to enter facilities for fear of contracting the virus.
Israel, now head of the environmental practice group at Arnold & Porter Kaye Scholer LLP, said he has been able to get the EPA to agree in some cases.
He also said most companies don’t skirt environmental laws—apart from “some bad actors"—even when they think government inspectors aren’t watching.
“I suspect the big operators will continue to be honest. They’re too afraid of the PR backlash of getting caught,” said Mark Ryan, a former agency senior counsel who now has his own law firm, Ryan & Kuehler PLLC, in Washington state. “The small to mid-sized businesses may see an opportunity to cut corners in the absence of any inspection.”
Most environmental enforcement work is done over email and phone calls, and that work can continue even if regulators are working from home, said Carlton Fields’ McAliley. Even if EPA employees need to collect a water sample, they can easily do so without contacting anyone else, he said.
Much of the EPA’s enforcement work involves reviewing reports on compliance, inspections, and discharge monitoring that have already been gathered and are available online, said Schaeffer, now executive director of the Environmental Integrity Project.
Settlement negotiations between a company and an agency can also take place online or via conference call, Schaeffer said. Information requests and notices of violation can still go out, “though that may slow down some as it may be a little harder to get review and approval with some people in, and some out,” he said.
Nevertheless, some agencies may be expected to change their priorities in ways that could cut into enforcement. For instance, the Corps—which plays a key role in regulating wetlands—may be asked to build hospitals, which could divert away from enforcement, McAliley said.
If the coronavirus continues to derail the economy, companies may have to cut down on business hours, changing their compliance obligations, according to Jennifer Novak, an environmental attorney with the Law Office of Jennifer F. Novak.
To illustrate, she pointed to companies that are required to sample for stormwater during normal business hours. If such a company has shortened its business hours, it may be able to argue it isn’t required to collect the same number of samples, she said.
“This is something nobody’s ever dealt with before,” Whitman said. “But nobody had ever dealt with anthrax. Nobody had ever dealt with the kind of thing we faced on 9/11. So it’s not that it’s totally new to us, trying to deal with new things.”
But trying to anticipate how the current EPA “will respond as far as something like enforcement goes is hard to know,” she said.