Environmental enforcement: What happens when the COVID-19 pandemic is over?
By Matthew Cohn
In a policy that has been praised by some, criticized by others, misunderstood by many, and politicized by many more still, the U.S. Environmental Protection Agency articulated its expectations for environmental compliance during and after the COVID-19 pandemic. Stated most simply, the EPA’s policy explains that if regulated entities cannot achieve environmental compliance due to the pandemic, then they must act as responsibly as possible under the circumstances, document the way in which the pandemic was the cause of any non-compliance at a facility, and return the facility to compliance as soon as possible.
In reaction to accusations that the EPA’s COVID-19 policy is tantamount to a suspension of the federal environmental enforcement program, on April 2, 2020, the EPA explained to Congress that its policy was only temporary and did not excuse the obligations of regulated entities to comply with permits, regulations and statutes. While the imminent health threat of the COVID-19 pandemic is rightfully receiving much attention, regulated entities are still expected and obligated to do everything possible to continue to protect the environment.
How behavior during the COVID-19 pandemic will be judged
Regulated entities should not take comfort or solace that they have entered a period during which environmental compliance conduct will not be scrutinized. On the contrary, there could very well be a post-pandemic period in which behavior during the pandemic will be judged, perhaps harshly, by those who may believe that unlawful advantage was taken. Even if the EPA is less aggressive in carrying out enforcement during this period, certainly others including the states, citizen enforcers and even the criminal prosecutors at the Department of Justice could see things differently and assume the lead in enforcing the law later.
Environmental enforcement is not just the EPA’s domain. With respect to citizen enforcement, Congress authorized citizen suits in various federal statutes for the very purpose of enabling citizens to enforce environmental laws when governmental authorities are unwilling or unable to act in that capacity. Moreover, aside from enforcement, after the pandemic, savvy and conscientious consumers may remember those who exhibited responsible and irresponsible behavior during this challenging period, and they could chose to reward in the marketplace those who accepted the circumstances and acted most sensibly, and punish those who did otherwise.
The COVID-19 policy
It is important first to understand just exactly what is in the EPA’s COVID-19 policy. The policy does not relieve regulated entities from environmental compliance obligations. Rather, the EPA only expressed a willingness to use its enforcement discretion in a way that acknowledges that facilities may be short on staff, laboratories may be less timely in performing analyses, and there may be other constraints on timely or complete environmental compliance. Regardless of the circumstances, the EPA expects the following:
- Entities should make every effort to comply with their environmental compliance obligations.
- If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
- act responsibly under the circumstances to minimize the effects and duration of any noncompliance caused by COVID-19;
- identify the specific nature and dates of the noncompliance;
- identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
- return to compliance as soon as possible; and
- document the information, action, or condition specified in the items above
Regarding routine monitoring and reporting, regulated entities should:
use existing procedures to report noncompliance with such routine activities, such as pursuant to an applicable permit, regulation or statute. If no such procedure is applicable, or if reporting is not reasonably practicable due to COVID-19, regulated entities should maintain this information internally and make it available to the EPA or an authorized state or tribe upon request.
Where environmental compliance activities are being performed pursuant to an administrative settlement agreement between a regulated party and the EPA, then:
if, as a result of COVID-19, parties to such settlement agreements anticipate missing enforceable milestones set forth in those documents, parties should utilize the notice procedures set forth in the agreement, including notification of a force majeure, as applicable.
Where there is a consent decree, then regulated parties should be cognizant that the federal court with jurisdiction will make the final decision regarding whether the COVID-19 pandemic legitimately impacted a party’s ability to meet environmental compliance obligations. Regarding such consent decrees, the EPA explains:
EPA staff will coordinate with DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligations … and will also consult with any co-plaintiffs to seek agreement to this approach. Courts retain jurisdiction over consent decrees and may exercise their own authority. Parties should utilize the notice procedures set forth in the consent decree, including notification of a force majeure, as applicable, with respect to any noncompliance alleged to be caused by COVID-19.
Aside from these permitting, regulatory and statutory obligations, the EPA expressed its expectation that regulated parties operate their facilities in a safe manner that does not harm public health and the environment. During the pandemic, the EPA will use its enforcement discretion and apply its resources in a way that targets the most imminent threats to public health and the environment.
While the EPA has issued its policy, it is important to remember that it is not just the EPA that enforces environmental laws.
Enforcement by the states
In our system of “cooperative federalism,” the EPA and the states have parallel roles in enforcing federal environmental laws. It is clear to most everyone that the states have taken on perhaps the most visible role in the public’s mind in responding to the COVID-19 pandemic. Stay-at-home orders and the like have largely been issued by governors. It is thus state actions that may perhaps be putting the greatest burden on regulated entities to meet their environmental compliance obligations.
When the pandemic is over, we anticipate that the states will scrutinize the behavior of regulated entities during the crisis. The states will have been tuned in and will be aware of what the regulated community was doing during the crisis, and will have noticed conduct that may not have received the attention of the federal government. In such a climate, environmental law enforcement by state environmental agencies and state attorneys general may take a front seat, to the extent that the states may be in the best position to bring enforcement actions against those perceived by state leadership and the public to have taken advantage of the situation with regard to environmental compliance.
Regulated entities should be conscientious and sensitive to state expectations throughout the pandemic to minimize the risk of enforcement when the pandemic ends. Prudent regulated entities are wise to document compliance efforts, impediments and corrective action taken in real time. Post hoc explanations are not likely to be effective without contemporaneous and admissible evidence that follows EPA’s directions.
Enforcement by citizens
Federal environmental laws such as the Clean Air Act, the Clean Water Act and the Resource Conservation and Recovery Act provide opportunities for private citizens to directly enforce statutory violations when the EPA and the states are unable or unwilling to enforce those laws themselves. The essence of a citizen suit is to “enable affected citizens to push for vigorous law enforcement even when government agencies are more inclined to compromise or go slowly.” Clearly, Congress meant to provide enforcement to citizens in addition to government agencies to ensure environmental compliance. Here, the EPA’s COVID-19 policy can easily be interpreted by citizens as the EPA’s unambiguous decision to compromise with regulated entities and delay – but not excuse – enforcement during a time of crisis, and only for documented and justifiable reasons. When the crisis abates, if the EPA and/or states decline to enforce the law, citizens may pursue their own actions in court against regulated entities alleging they took advantage of the situation in order to avoid environmental compliance obligations.
To extent that regulated entities are unable to meet their environmental compliance obligations during the COVID-19 pandemic, they will be unable to rely exclusively on the EPA’s policy as a defense against citizen enforcers. Regulated entities should be careful to make a record with admissible, contemporaneous evidence collected during the pandemic in order to prove impossibility of compliance or the frustration of their attempt to comply.
Similarly, the EPA’s COVID-19 policy makes a not-so-veiled threat that criminal enforcement remains possible for regulated entities that fail to comply with environmental obligations not necessarily caused by the pandemic. The EPA’s COVID-19 policy explains:
Federal environmental statutes generally authorize criminal penalties for knowing conduct that violates the law. In screening cases to determine when to seek prosecutorial assistance from DOJ, the EPA will distinguish violations that facilities know are unavoidable as a result of COVID-19 restrictions from violations that are the result of an intentional disregard for the law. EPA’s Criminal Investigative Division remains vigilant and is prepared to pursue violators who demonstrate a criminal mens rea.
In other words, the EPA is telling regulated entities that it will be on the lookout for those who knowingly and consciously took advantage of the situation to avoid environmental compliance obligations.
Public expectations of corporate responsibility
Nearly everyone in the United States has been personally impacted in some way by the COVID-19 pandemic. With that shared experience, it would be prudent to anticipate outrage directed at those who are perceived to have taken advantage of the circumstances for personal gain. A record and admissible evidence will serve to inoculate a regulated entity from an unfounded charge of being a scofflaw during this time of national crisis. Moreover, after the pandemic abates, the experience will be raw for many, and for some consumers, learning of irresponsible environmental behavior while environmental compliance was possible in spite of the pandemic, will be enough to make those consumers look for different suppliers who behaved better and acted more responsibly. While no one would seek the pandemic under any circumstances, the opportunity to provide evidence of compliance even during a crisis is an opportunity to show consumers, citizens and agencies that a regulated entity is and remains a responsible corporate citizen. Even without legal enforcement and penalties, consumers can use the marketplace to express their disapproval of those businesses they believe chose to act improperly in times that challenged everyone.
While most attention is properly focused on the imminent health threat of the COVID-19 pandemic, now is not the time to avoid or ignore environmental compliance obligations. Regulated entities should make every effort to comply with permits and with regulatory and statutory obligations, or be able to provide real-time evidence of reasonable and responsible alternatives. If non-compliance is unavoidable, then it is essential that regulated entities make a record of all the facts and circumstances surrounding their non-compliance. Furthermore, regulated entities must return to compliance as quickly and expeditiously as possible. Regulated entities should also be cognizant that this crisis will end, and like in any crisis, it is natural and foreseeable that there could be a reckoning for those who were perceived to have taken advantage of the situation. Behavior will be judged after the fact, and those who are viewed as having behaved below expectations, if not subjected to traditional EPA civil enforcement, could be the subject of state enforcement, citizen enforcement and even criminal enforcement. Moreover, consumers could choose to reward good behavior and rebuke bad behavior in the marketplace.
Our Environmental Practice Group is continuing to monitor these developments and is available to answer your questions related to matters affected by COVID-19. Contact Matt Cohn and Bill Anaya in Chicago or Richard Greenberg and Greg Mollett in St. Louis.
 Memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, by Susan Parker Bodine, EPA, March 26, 2020 (“COVID-19 Mem.”), https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf (visited Apr. 5, 2020).
 Letters to Senator Diane Feinstein, Representative Katie Porter, and Representative Mike Quigley, by Susan Parker Bodine, EPA, April 2, 2020, https://www.epa.gov/newsroom/april-2-2020-letters-susan-bodine-oeca-aa-feinstein-porter-quigley (visited Apr. 5, 2020).
 COVID-19 Mem., p. 1-2.
 COVID-19 Mem., p. 2.
 COVID-19 Mem., p. 4.
 COVID-19 Mem., p. 4.
 COVID-19 Mem., p. 4-5.
 COVID-19 Mem., p. 7.
 Cooperative Federalism at EPA, https://www.epa.gov/home/cooperative-federalism-epa (visited Apr. 5, 2020).
 Clean Air Act, 42 U.S.C. § 7604(a), Clean Water Act, 33 U.S.C. § 1365(a), RCRA 42 U.S.C. § 6972(a).
 Adkins v. VIM Recycling, 644 F.3d 483, 501 (7th Cir. 2011).
 COVID-19 Mem., p. 7.