On May 19, 2020, President Trump issued an Executive Order (EO) intended to combat the unprecedented effect COVID-19 has had on the American economy, by directing agencies to remove or ease regulatory barriers to spur economic growth.  In general, the EO directs agencies to ease regulatory and enforcement burdens that may inhibit economic recovery, provide guidance on what the law requires, recognize the efforts of regulated industries to comply with the law, and ensure fairness in administrative enforcement and adjudication. Perhaps most notably, the EO is written broadly enough that agencies may look beyond COVID-19-related impacts when considering how to implement the EO.
Continue Reading The President’s COVID-19 Executive Order Easing Regulatory Burdens

Massachusetts has now doubled the size of its Solar Massachusetts Renewable Target (“SMART”) incentive program, along with new performance standards for the siting of these renewable generating resources. While these changes to the SMART program were adopted as emergency regulations—making them effective immediately—the Commonwealth will go through the notice and comment rulemaking process over the next few months to provide for continued input from stakeholders on the new regulations and associated guidance.
Continue Reading Massachusetts Doubles Size of “SMART” Solar Program

EPA is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice, the Texas Commission on Environmental Quality, the Railroad Commission of Texas, and the California Environmental Protection Agency have followed EPA’s lead in issuing their own temporary policies related to the pandemic.
Continue Reading EPA Continues Temporary COVID-19 Policies Despite Senators’, States’, Citizens Groups’ Scrutiny

Today, April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued its anticipated interim guidance on impacts to operations at cleanup sites due to the COVID-19 pandemic.  The guidance memorandum, issued jointly by the heads of EPA’s Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) and directed to Regional EPA Administrators, focuses on adjusting response activities at cleanup sites under a number of EPA administered programs and emergency responses due to the COVID-19 situation and the myriad of state and local shelter-in-place and business curtailment orders.
Continue Reading EPA Cleanup Site Guidance Recognizes COVID-19 Challenges for Response Activities

Commentary regarding the US Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) memorandum articulating a temporary policy applying enforcement discretion in light of the COVID-19 pandemic has been significant this week. Proponents and critics alike have misinterpreted the scope of the policy as reaching far beyond what OECA’s memorandum actually stated. As we stated in Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19 and as the EPA has now confirmed, the “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic” is not a free pass to pollute, despite opponent’s musings to the contrary.

Continue Reading Misconceptions About EPA’s Temporary Enforcement Discretion Policy for COVID-19

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.

Continue Reading Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19

Regulatory staff continue to advance the Administration’s regulatory agenda, including issuing proposed and final rules. This blog post highlights the status of key natural resource regulatory actions.
Continue Reading COVID-19 and the CRA Deadline: Status of the Natural Resources Regulatory Agenda

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.


Continue Reading Tools for Navigating Natural Resource Laws During a National Emergency

On March 2, 2020, the Environmental Protection Agency proposed an updated Multi-Sector General Permit, which authorizes the discharge of stormwater industrial activities and is the model for most states’ industrial stormwater NPDES permits. The proposal makes numerous updates to the MSGP and, notably, incorporates recommendations from the National Academy of Sciences report on improving permitting of industrial stormwater. EPA will be accepting public comments on the proposal until May 1, 2020.
Continue Reading EPA Proposes New Multi-Sector General Permit for Industrial Stormwater

How can sitting still in the Northeast potentially land you in a world of trouble under the Federal Clean Air Act (CAA) and corresponding state laws? Quite easily, if you happen to be in or leave a vehicle with its engine on and the vehicle itself is not in motion for more than a few minutes. That is the definition of “unnecessary vehicle idling” in many jurisdictions.

Across the Northeast and elsewhere, unnecessary vehicle idling is, subject to certain nuances and exceptions, generally prohibited. Recently, violators have come under attack by non-governmental organizations. State penalties vary, but the potential exposure can be severe, especially when the statutory maximum available penalties are calculated pursuant to the Federal CAA and compounded on a per-violation/per-day basis. Accordingly, owners and operators of all forms of trucking and transit companies should not sit still and should take proactive measures to educate or reeducate vehicle schedulers and operators alike on these anti-idling requirements.
Continue Reading Sitting Still (or How State Anti-Idling Laws are Landing Transit and Transportation Companies in Federal Court)