Holding Polluters Accountable in Times of Climate and COVID Risk: The Problems with 'Emergency' Enforcement Waivers

12 San Diego Journal of Environment & Energy Law 1 (2021)

18 Pages Posted: 22 Apr 2021

See all articles by Victor Byers Flatt

Victor Byers Flatt

University of Houston Law Center; University of Houston Global Energy Management Institute

Date Written: April 20, 2021

Abstract

One of the first actions of the Environmental Protection Agency after the declaration of the COVID-19 crisis in mid-March 2020 was to announce that it would relax its enforcement policies with respect to environmental reporting and violations during the time of the pandemic. Ostensibly this was to ensure that regulated entities were not penalized by their inability to have inspectors on the front lines to ensure that substantive permit and monitoring requirements were followed. Taking their lead from the EPA, many states announced that they were following suit.

EPA always has discretion in terms of enforcement, but in making a blanket announcement, the agency created the space for substantial pollution and health risk from lack of adequate compliance in the regulated communities. It is hard to know what harms exist when reporting requirements are waived. This also sent the message that environmental protection is not a “critical function” which it should be at all times.

After climate induced disasters, federal and state agencies have done the same thing, abusing the “emergency” exemption privileges to give a broad non-compliance pass to regulated industries.

The uproar of the enforcement pause during the COVID-19 epidemic has shown a light on the abuse of enforcement discretion in disasters which are becoming more frequent with climate change.

This article examines the legal basis of emergency exemptions, provides examples of how they have been abused in climate related disasters and the COVID-19 epidemic, and proposes solutions to curtail the abuse of these exemptions while still accounting for genuine emergency conditions.

Keywords: Enforcement waiver, emergency waiver, COVID, climate emergency, enforcement, environmental enforcement

JEL Classification: I8, K32, K42, Q38, Q48, Q53, Q54, Q58

Suggested Citation

Flatt, Victor Byers, Holding Polluters Accountable in Times of Climate and COVID Risk: The Problems with 'Emergency' Enforcement Waivers (April 20, 2021). 12 San Diego Journal of Environment & Energy Law 1 (2021), Available at SSRN: https://ssrn.com/abstract=3830839 or http://dx.doi.org/10.2139/ssrn.3830839

Victor Byers Flatt (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-922-0392 (Phone)

University of Houston Global Energy Management Institute ( email )

Houston, TX 77204-6021
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
11
Abstract Views
148
PlumX Metrics