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

Date01 August 2022
AuthorVictor B. Flatt
by Victor B. Flatt
Victor B. Flatt is Dwight Olds Professor of Law at the University of Houston Law Center, where he also
serves as the Faculty Co-Director of the Environment, Energy, and Natural Resources Center.
In 2020, the oil and gas industry cl aimed that employee
shortages induced by lockdowns and social distancing
during the COVID-19 pandemic made it dicult to
comply with the U.S. Environmental Protection Agency’s
(EPA’s) anti-pollution rules. EPA, followed by state agen-
cies, responded to industry pressure with rela xed enforce-
ment. However, EPA’s enforcement waiver, entered
ostensibly to protect workers from the novel coronavirus,
likely increased negative public health impacts. Speci-
cally, harmful air pollutants rose in heavily industrial-
ized areas where the increase correlated with a spike
in daily death rates from COVID-19. Congressional
investigators link this to particularly severe impacts on
minority communities.
is Article examines the legal ba sis of emergency
exemptions, provides examples of how they have been
abused during climate-related disasters and the COVID-
19 pandemic, and proposes solutions to curtail the abuse of
these exemptions while still accounting for genuine emer-
gency conditions.
Federal and state laws, including environmental laws,
provide for emergency exemptions from otherwise man-
datory regulations. However, emergency exemptions
often last well beyond the acute period of the qualifying
emergency, exempting industries from containing and
documenting the release of signica nt amounts of air and
water polluta nts. EPA should create solutions that would
minimize the negat ive eects of overextended, unnecessary
emergency exemptions.
First, EPA should require facilities generating above a
threshold amount of emissions to plan for an emergency
or disaster as a condition of their permits under the Clean
Air Act (CA A), Clean Water Act (CWA), and Resource
Conservation and Recovery Act (RCRA). is could be
accomplished with new rulemak ing or guidance, as mod-
eled by the Emergency Planning and Community Right-
to-Know Ac t (EPCR A).
Second, EPA should promulgate a rule specifying that,
to the extent possible, all permitted entities must keep
records of releases during disaster exemptions and con-
tinue to report these to their permitting agency (whether
the state or federal). Except during the most acute phase
of an emergency, when personnel may need to evacuate or
power is not available, most companies are already keeping
track of their releases.
Finally, waivers should automatically sunset after a cer-
tain period, subject to permitted parties’ demonstration of
a continued inability to meet their obligations. EPA should
revoke a state’s authority to administer emergency exemp-
tions if it does not impose and monitor sunset provisions.
Although EPA has little appetite or capacity for state pro-
gram takeovers, the mere threat of a possible takeover may
alter state actions.
Editors’ Note: This abstract is adapted from Victor B. Flatt,
Holding Polluters Accountable in Times of Climate and
COVID Risk: The Problems With “Emergency” Enforcement
Waivers, 12 SAN DIEGO J. CLIMATE & ENERGY L. 1 (2021),
and used with permission.
Copyright © 2022 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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