The EPA Responded to a Respiratory Virus by Relaxing Pollution Controls

Major polluters were deemed ‘essential.’ Under EPA policy, environmental and safety inspectors were not.

Victor B. Flatt and Joel A. Mintz September 16, 2020

Wikimedia Commons

Edi­tor’s Note: This arti­cle was orig­i­nal­ly pub­lished by The Rev­e­la­tor, a pub­li­ca­tion of the Cen­ter for Bio­log­i­cal Diversity.

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 Covid-19. The pol­i­cy allowed pol­luters that assert­ed Covid-19 pre­vent­ed them from mon­i­tor­ing and report­ing their own pol­lu­tion to refrain from doing so with­out penalty.

Howls of protest and a federal lawsuit prompted EPA to terminate its Covid policy at the end of August. But too much damage has already been done.

Many of the largest reg­u­lat­ed pol­luters, such as refiner­ies and chem­i­cal plants, were des­ig­nat­ed as essen­tial busi­ness­es that were to keep oper­at­ing dur­ing the pan­dem­ic. But EPA’s waiv­er pol­i­cy allowed these com­pa­nies to send home nonessen­tial” envi­ron­men­tal and safe­ty inspec­tors whose job it is to pro­tect the pub­lic. Only to an agency that deval­ues pol­lu­tion impacts and pro­tect­ing the pub­lic does such a pol­i­cy make sense.

This pol­i­cy also left EPA and state offi­cials in the dark about where and why pol­luter self-mon­i­tor­ing had been halt­ed. Many in the oil and gas indus­try raced to sus­pend Leak Detec­tion and Report­ing, a crit­i­cal pro­tec­tion against fugi­tive tox­ic gas leaks. With­out self-mea­sure­ments, even refin­ery own­ers and oper­a­tors may have been unaware of any haz­ardous con­t­a­m­i­nants their plants were emitting.

Strik­ing­ly, more than 50 of the facil­i­ties that obtained rule exemp­tions had trou­bling pre-pan­dem­ic records of envi­ron­men­tal vio­la­tions. Waiv­er peti­tions from such recidi­vists should have received the most care­ful and exact­ing scruti­ny. But in the fren­zy to grant pass­es to pol­luters under cov­er of the pan­dem­ic, even that sen­si­ble safe­guard went unobserved.

Fol­low­ing the EPA’s lead, numer­ous states adopt­ed and imple­ment­ed undu­ly lax pan­dem­ic waiv­er poli­cies. Texas grant­ed more than 200 waiv­er requests, but the Lone Star state was not alone:

  • Reg­u­la­tors sus­pend­ed in-per­son self-inspec­tions at a nuclear test site in Nevada.
  • North Dako­ta offi­cials grant­ed a request to sus­pend ground­wa­ter sam­pling at a nat­ur­al-gas pro­cess­ing plant where 837,000 gal­lons of liq­uid nat­ur­al gas had spilled from a leak over the pre­ced­ing five years.
  • Arkansas grant­ed a long-term blan­ket waiv­er of safe­ty test­ing for aban­doned oil and gas wells.
  • Wyoming grant­ed (most­ly very large) oil and gas com­pa­nies a pass on air-pol­lu­tion emis­sion rules.
  • Michi­gan approved requests from sev­er­al cities to delay test­ing for lead in drink­ing water and for replac­ing the sort of lead pipes that cre­at­ed the hor­rif­ic pub­lic health dis­as­ter in Flint.

These reg­u­la­to­ry fail­ures have occurred against the back­drop of a steady decline in both fed­er­al and state envi­ron­men­tal enforce­ment. The num­bers of gov­ern­ment sci­en­tists and attor­neys whose work focus­es on enforc­ing envi­ron­men­tal laws has dropped sig­nif­i­cant­ly in recent years. There have also been sub­stan­tial decreas­es in the num­bers of in-per­son gov­ern­ment inspec­tions of pol­lu­tion sources, the vol­ume of enforce­ment actions pur­sued, the num­ber of envi­ron­men­tal crim­i­nal inves­ti­ga­tions, and the amount of mon­ey that pol­luters have been com­pelled to spend on pol­lu­tion con­trol as a direct result of enforce­ment activ­i­ties. EPA has all but aban­doned its long­stand­ing over­sight of state enforce­ment work. And the fed­er­al agency has craven­ly deferred to state enforce­ment (or nonen­force­ment) pri­or­i­ties, even though quite a few states lack the resources and/​or polit­i­cal will to effec­tive­ly enforce envi­ron­men­tal standards.

Howls of protest and a fed­er­al law­suit prompt­ed EPA to ter­mi­nate its Covid pol­i­cy as of Aug. 31. But too much dam­age has already been done.

How do we move for­ward, even as the pan­dem­ic con­tin­ues? Sev­er­al mea­sures are urgent­ly need­ed to rein­vig­o­rate envi­ron­men­tal enforce­ment in the Unit­ed States. Cer­tain­ly any overt­ly fraud­u­lent sus­pen­sion appli­ca­tions must be iden­ti­fied and be the basis for strict enforce­ment mea­sures. Though we may nev­er know the full scope of the dam­age, any avail­able data col­lect­ed by the reg­u­lat­ed enti­ties or the pub­lic dur­ing the enforce­ment sus­pen­sion should be scru­ti­nized to ensure that harms aren’t con­tin­u­ing. More fed­er­al and state mon­ey must be allo­cat­ed to envi­ron­men­tal enforce­ment work — and the size of EPA grants to state agen­cies must be mean­ing­ful­ly increased. The EPA and the states must devote time and ener­gy to recruit­ing new enforce­ment pro­fes­sion­als and sup­port staffs. And — impor­tant­ly — envi­ron­men­tal agen­cies must upgrade the train­ing they pro­vide for new­ly hired staffers so mis­takes by inex­pe­ri­enced rook­ies will be minimized.

Pro­tect­ing gov­ern­ment and pri­vate-sec­tor employ­ees from dis­ease is unques­tion­ably a legit­i­mate and worth­while goal. How­ev­er, employ­ee pro­tec­tion should not be used as an excuse to sus­pend gov­ern­ment enforce­ment of crit­i­cal envi­ron­men­tal safe­guards. The health of all Amer­i­cans requires noth­ing less.

Vic­tor B. Flatt is the Dwight Olds Chair in Law and the fac­ul­ty co-direc­tor of the Envi­ron­ment, Ener­gy, and Nat­ur­al Resources Cen­ter at the Uni­ver­si­ty of Hous­ton Law School. He is a Mem­ber Schol­ar at the Cen­ter for Pro­gres­sive Reform.

Joel A. Mintz is pro­fes­sor of law emer­i­tus and C. William Trout Senior Fel­low at Nova South­east­ern Uni­ver­si­ty Col­lege of Law, and a board mem­ber of the Cen­ter for Pro­gres­sive Reform. 
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