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

• Date: 01 August 2022
• Author: Victor B. Flatt

52 ELR 10660 ENVIRONMENTAL LAW REPORTER 8-2022

HONORABLE MENTION

HOLDING POLLUTERS ACCOUNTABLE

IN TIMES OF CLIMATE AND COVID

RISK: THE PROBLEMS WITH

“EMERGENCY” ENFORCEMENT

WAIVERS

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.