EPA’s Enforcement Shutdown During Pandemic Puts Americans At Risk

Coupled with the agency’s deregulatory agenda, lack of monitoring and enforcement raises the risks faced by vulnerable communities living next to polluting industries.

Find more of our Covid-19 coverage.

Over the past several weeks, the US Environmental Protection Agency (EPA) has made its stance perfectly clear: even a global pandemic will not deter its effort to rollback decades worth of environmental protections. The agency’s deregulation-at-all-cost attitude — exhibited in its decision to push full speed ahead with several rulemakings while simultaneously announcing that it is pulling back on enforcement activities — will disproportionately impact communities living near polluting industry, experts say, many of which are also at heightened risk during the coronavirus outbreak.

photo ofrefinery
As Americans contend with the health and economic costs of the coronavirus pandemic, the EPA has pushed ahead with its deregulatory agenda. Photo by Thomas Hawk.

“The agency is continuing to move forward with a fundamentally deregulatory agenda,” says Patrice Simms, vice president of Earthjustice’s Healthy Communities program. “This is really a moment when the agency should be taking a pause, stepping back, focusing on immediate concerns of making sure people are well protected, that people are cared for, that people are not experiencing additional exposures to pollution at a time when they are also being challenged by everything that’s going on with respect to Covid.”

Among the rollbacks the EPA has continued pushing during the crisis is the Safer Affordable Fuel-Efficient Vehicles rule, the final version of which was issued on March 31. The rule would ease fuel efficiency standards for new cars and light trucks, and in the process, experts say, increase pollution and accelerate the climate crisis. The agency has also proceeded with efforts to weaken a rule that limits the leaching of heavy metals like mercury, lead, and arsenic from coal ash, a byproduct of coal-fired power plants; to rollback another regulation that restricts mercury emissions from coal plants; and has published an updated version of a rule — often referred to as the “secret” or “censored” science rule by opponents — that would place limits on the types of studies that can be used in regulatory decisions impacting public health.

Environmental and public health groups have called on the EPA to delay this type of work, or at the very least, to extend public comment periods on rulemakings to afford people more time to participate during the pandemic. The agency did extend the comment period for the “censored science” rule by 30 days, which Simms described as “utterly insufficient.”

“When it comes to some of their long-announced and long-intended rollbacks, they are proceeding apace,” Richard Frank, professor of environmental practice and director of the California Environmental Law and Policy Center at the University of California, Davis, says. “They are going ahead with as much speed as they can muster.”

At the same time, he adds, the administration “is using coronavirus epidemic as a reason to essentially shut down the US EPA’s environmental enforcement responsibilities,” referring to the agency’s announcement in late March of an “enforcement discretion policy” to “adjust to the evolving Covid-19 pandemic.” The policy states that the “EPA does not expect to seek penalties for violations of routine compliance monitoring,” and is retroactive to March 13.

The exercise of certain types of enforcement discretion at the EPA is not without precedent. Simms points to gas stations in Northeastern states as an example. These facilities are required to provide “clean” gasoline during summer months. In the event of a pipeline rupture, however, they may have no way do so. In such cases, the EPA would be unlikely to enforce the clean gasoline standard.

The problem with the EPA’s Covid-related policy is that it potentially has a much farther reach, and essentially promises such discretion in advance of any concrete compliance difficulties being cited by industries it regulates.

As Simms puts in, aside from a few exceptions — including criminal violations of environmental laws — under this policy almost anything could be subject to enforcement discretion “so long as non-compliance can be chalked up in some post-hoc fashion” to Covid-19. (The policy does not, however, limit the right of individual states to implement environmental regulations, which means it will likely have a greater impact in places with weaker state-level enforcement.)

“The breadth of that is just astounding,” Simms adds. “The imprecision of that is astounding. Nothing in the memo describes with any specificity why it would be difficult to comply [during the pandemic].”

Dozens of organizations have signed onto a letter opposing the policy, noting that lack of monitoring and enforcement could put those living near polluting facilities, as well as those working at the facilities, at risk: “Actions that obscure the release [of] toxins or other air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems in the midst of a pandemic that can cause respiratory failure is irresponsible from a public health perspective.”

This risk is additive. “There are communities that carry much more of [the pollution] burden, a very disproportionate share of that burden, and those communities especially rely on the enforcement of the law to protect them from those assaults,” Simms says.

For several reasons, many of these same communities also face a heightened risk when it comes to coronavirus. Part of that risk comes down to air pollution itself, as mounting evidence indicates that exposure to even moderately worse air pollution increases the risk of a person experiencing the more severe respiratory symptoms associated with Covid-19, as well as the risk of death.

But it doesn’t end there. Many of the same communities that experience high environmental burdens are also lower income and communities of color. They are less likely to have access to healthy foods, less likely to have jobs that afford them the luxury of working from home, and more likely to have preexisting health conditions like diabetes and cardiovascular disease that put them at greater risk when it comes to the coronavirus. What’s more, they are less likely to have health insurance, and more likely to experience lower quality of care within the healthcare system. (Though data breaking down Covid-19 infection and death rates by race is sparse, early evidence suggests Black populations are suffering disproportionately with respect to both.)

Beyond the critical immediate impacts of discretionary enforcement policy, Franks points to yet another concern: The lack of an end date in the memo released by the EPA. “I’ll be very interested to see how long this US EPA policy stays in effect, and [whether] there is a possibility the EPA will ‘forget’ to repeal that policy in favor of traditional enforcement practices” once the pandemic has subsided, particularly as the country begins to focus on economic recovery.

Thankfully, groups like Earthjustice are unlikely to let such forgetfulness go unnoticed. “We’re looking at the agency’s policy very carefully,” Simms says. “We will continue to look at keep a close eye on what the agency does, and what the implications of this policy are on the ground.”

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