Regulated industry has been expressing significant concern about disruption as a result of the COVID-19 pandemic and seeking assurance from the US Environmental Protection Agency (EPA) that the extraordinary circumstances across the United States would be taken into account in the event of any unanticipated noncompliance. Yesterday, March 26, 2020, EPA’s (EPA) Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine responded to these concerns with the issuance of a memorandum addressing the impact of the current global COVID-19 pandemic on EPA’s enforcement program. In it, OECA commits EPA to a “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic,” provided that regulated entities follow the steps required in the policy.
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As the country responds and adapts to unprecedented change as a result of the COVID-19 pandemic, companies are, understandably, attempting to sort out what these shifts mean for operations now and in the near future. One operational aspect that companies must address is management of environmental compliance programs and responsibilities. Although it can be challenging to maintain compliance with environmental requirements during periods of uncertain or disrupted operations, doing so remains necessary as environmental regulatory requirements remain in force, despite disruptions to government functions. The current operational and regulatory climate is fluid and changing daily (at least), making it incumbent upon companies to remain vigilant in monitoring for updates and understanding the status of rules and requirements at any given moment. The keys to successfully navigating compliance challenges during the pandemic are preparedness, situational awareness, and early and frequent communication with regulatory agencies as appropriate, with the assistance of counsel as needed.
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EPA’s National Compliance Initiatives for fiscal years 2020 through 2023, recently released, replace the former National Enforcement Initiatives and aim to help regulated entities understand their compliance obligations. Additionally, the Agency plans to focus on returning to compliance through information actions, building state capacity, supporting state actions, bringing Federal civil administrative actions and bringing civil or criminal judicial enforcement actions.
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Standing may seem like an arcane concept, but, as lawyers, we know that this term has special legal meaning—and that it affects whether our clients or our clients’ opponents can successfully bring a lawsuit. Understanding standing is no easy task. In a decision by the DC Circuit last week, the Sierra Club was reminded just how important standing can be when challenging, or more to the point attempting to challenge, environmental laws, and the DC Circuit has not just singled out environmental groups in requiring a showing of standing.
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Last week, the US Environmental Protection Agency (EPA) released its annual enforcement results for the 2018 fiscal year (ranging from October 1, 2017, to September 30, 2018). The report, prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), highlights the results of the agency’s civil and criminal enforcement of the nation’s federal environmental laws over the past year.
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The U.S. Court of Appeals for the Second Circuit in July issued a long-awaited decision in the case Cooling Water Intake Structure Coalition v. U.S. EPA, upholding the EPA’s 2014 Rule establishing requirements pursuant to Clean Water Act section 316(b) for cooling water intake structures at existing facilities. The court also upheld the biological opinion and incidental take statement issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service on the 2014 Rule.
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On July 9, President Trump announced Judge Brett Kavanaugh of the Court of Appeals for the DC Circuit as his nominee to replace retiring Justice Anthony Kennedy on the Supreme Court. Kavanaugh has developed an extensive history of jurisprudence during his twelve-year tenure on the DC Circuit. And, given the DC Circuit’s heavy administrative law caseload, Kavanaugh has authored numerous opinions involving environmental law. The upcoming confirmation process is sure to include a focus on Kavanaugh’s robust environmental and administrative law record and what it might portend for the future.
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The US Environmental Protection Agency (EPA) released its annual enforcement and compliance results for the most recent fiscal year (FY) on February 8, 2018. The results, which cover the period from October 1, 2016, to September 30, 2017, are the Trump administration’s first annual statistical report on federal environmental enforcement. The results provide insight into the administration’s focus and priorities for enforcement.
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A year ago, the regulated community and its environmental lawyers recognized that the Trump administration would bring a new approach to the enforcement of federal environmental laws, but the nature of the specific changes remained nebulous. While it is still early to speculate on the long-term impacts to enforcement that may be implemented by the administration, events over the prior year have brought the new administration’s enforcement philosophy and priorities into greater focus. This post reviews some of the key personnel, policy, and budget announcements made during President Trump’s first year in office that will shape the future of federal environmental enforcement by the Environmental Protection Agency in the coming years.

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