In response to the backlash regarding the EPA’s implementation of a temporary enforcement discretion policy, the EPA administrator, Andrew Wheeler, described the temporary policy as “very mild” in comparison to the agency’s actions in prior crises.

On March 26, 2020, the EPA issued a memorandum implementing a temporary enforcement discretion policy due to the coronavirus pandemic. Under the policy, the EPA will not seek penalties for certain missed environmental obligations.

The EPA’s policy received mixed reactions from both states and environmental groups. While some states have issued their own enforcement discretion policies, other states, like New York and California, have stated that they will continue to enforce environmental obligations and implement rules.  Similarly, environmental groups are not pleased with this temporary policy. Erik Olson, an attorney with the Natural Resources Defense Council, described the policy as similar to “a bank turning off all of its security cameras and all of its alarms and then telling people ‘please be good.’”

In an interview on Thursday, April 2, Wheeler responded to critics of the EPA’s policy by comparing it to EPA policies under the Obama administration. In 2012, following Hurricane Sandy, the EPA issued 13 separate enforcement discretion actions and five fuel waivers primarily targeted at four affected states. In contrast, the EPA is now dealing with impacts to all 50 states from the coronavirus.

Susan Bodine, the EPA’s assistant administrator for enforcement and compliance assurance, stated that the EPA’s policy was left open-ended because the “situation is very fluid” and no one knows when the crisis will be over. Wheeler also added that he doesn’t believe that bad actors will have a greater opportunity to avoid environmental obligations under the temporary policy. He noted that there will always be some bad actors, but the EPA will continue to go after them.

For more information about the EPA’s temporary enforcement discretion policy, see Reed Smith’s earlier blog post “EPA announces new temporary enforcement discretion policy.”