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On March 26, 2020, The Environmental Protection Agency (EPA) issued a memorandum in response to the COVID-19 pandemic. “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program” authored by Susan Parker Bodine, (Assistant Administrator for Enforcement and Compliance Assurance) is a 7-page temporary policy, in which the EPA addresses industry concerns over non-compliance issues as a result of COVID-19. Staff shortages, travel restrictions and other imposed regulations are affecting facility operations, reporting obligations and ability to meet required deadlines.

The policy is a reactive answer, broadly addressing industry concerns. The EPA is assuming that all industries will operate under the covenant of “good faith” meticulously documenting any inability to meet  required deadlines. inclusive of chemical plants, oil refineries and steel manufacturers. Industries will be allowed to exceed emission allowance if they can cite COVID-19 as the reason for non-compliance. Under The Clean Air Act, penalties for exceeding emission allowance can reach $35,000.00 per day; per violation up to $295,000.00. The new policy allows industries to dodge monetary penalties, using COVID-19 as a crutch. Without a proper system of checks and balances, undocumented pollution will contribute to further health complications, stress on the medical community and deplete precious resources.

This policy is retroactive to March 13, 2020.

Analysis

American Petroleum Institute (API), was the first to request relief from President Trump. The oil industry’s largest trade group, API submitted a letter to Andrew Wheeler detailing how the COVID-19 crisis has caused infrastructure and compliance roadblocks. The API lists challenges such as administrative constraints while working from home, monitoring requirements, delay of infrastructure projects, and relief from leak detection and repair. The result was a broadly written set of guidelines issued by the EPA, “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program”.

EPA Administrator Andrew Wheeler and the Trump Administration defend the decision to suspend enforcement of environmental laws. On March 13, 2020 Wheeler was quoted by the press defending the memorandum “The EPA is committed to protecting human health and the environment but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.” The EPA is adamant that they are working diligently to provide flexibility to organizations while protecting public and environmental health during these unprecedented times. The indirect conflict that lies within, is The EPA agrees to relieve industries of monetary penalties, while environment and public health suffers as a result of potential toxins being released into air, water and land supply

Openly opposing the policy is Michael Brune, Executive Director of the Sierra Club. Brune is adamant that “Donald Trump and Andrew Wheeler are exploiting this pandemic to make toxic pollution legal.” Concurring with Brune is Former Obama-era EPA chief Gina McCarthy, now President of the Natural Resources Defense Council, calling this policy “an open license to pollute.” She believes that It’s unconscionable to use a public health crisis to justify lack of legal responsibility. However, it’s public knowledge that the Trump Administration is heavily in favor of supporting environmental rollbacks.

In a New York Times article, December 21, 2019, “95 Environmental Rules Being Rolled back by the Trump Administration” air pollution, drilling, infrastructure, animals, toxic substances and water pollution rules were being rolled back for being burdensome to large corporations. A report by The New York University Law School’s State Energy and Environmental Impact Center, reports that supported rollbacks could lead to poorer air quality, increase greenhouse emissions and lead to thousands of extra deaths in the coming years. Still, President Trump has made eliminating regulations a top priority. Uninterested or in denial, he has made a point of ignoring advisement on the quality of the environment, and the linkage it has to population health.

As a Federal Agency, the EPA’s mission is to protect human and environmental health. They create standards and laws that reduce environmental risks and ensure Americans have access to clean water, air and land. Considering the wrath of the current pandemic, the EPA should be hyper vigilant of regulated industries, confirming that all protocols are followed, in an attempt to prevent further complications of COVID-19.  As a result of suspending sanctions, monitoring obligations, and laboratory analysis deadlines, there will not be record of the violations, or collateral damage caused as a result of this decree.

Resistance Resources

• Center for CoalField Justice . (n.d.). Retrieved from https://www.coalfieldjustice.org/: https://www.coalfieldjustice.org/
• Clean Water Action . (n.d.). Retrieved from https://www.cleanwateraction.org/ : https://www.cleanwateraction.org/
• Climate Justice Alliance . (n.d.). Retrieved from https://climatejusticealliance.org/: https://climatejusticealliance.org/
• Coming Clean . (n.d.). Retrieved from https://comingcleaninc.org/: https://comingcleaninc.org/
• Environmental Justice For All. (n.d.). Retrieved from https://ej4all.org: https://ej4all.org/
• Food and Water Action . (n.d.).  Retrieved from https://www.foodandwateraction.org/ https://www.foodandwateraction.org/
• Indigenous Environmental Network. (n.d.). Retrieved from https://www.ienearth.org/: https://www.ienearth.org/
• National Resources Defense Counsel. (n.d.). Retrieved from https://www.nrdc.org/: https://www.nrdc.org/
• Public CItizen . (n.d.). Retrieved from https://www.citizen.org/ : https://www.citizen.org/
• Water You Fighting For. (n.d.). Retrieved from http://www.wateryoufightingfor.com/: http://www.wateryoufightingfor.com/

References

• Environmental Protection Agency of The United States. (2020). Retrieved from EPA.gov: EPA.gov
• Friedman, L. (2020, March 26). E.P.A., Citing Coronavirus, Drastically Relaxes Rules for Pollute. Retrieved from NYTimes.com : https://www.nytimes.com/2020/03/26/climate/epa-coronavirus-pollution-rules.html
• Lavelle, M., McKenna, P., Hasemyer, D., & Kusnetz, N. (2020, March 27). Trump’s Move to Suspend Enforcement of Environmental Laws is a Lifeline to the Oil Industry. Retrieved from insideclimatenews.com : https://insideclimatenews.org/news/27032020/coronavirus-covid-19-epa-api-environmental-enforcement
• NADJA POPOVICH, L. A.-R.-L. (2019, Decemeber 21). 95 Environmental Rules Being. Retrieved from NYTimes.Com: https://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html
• Rushton, L., Kirkland, J., & Vore, B. A. (2020, March 24). COVID-19 and Environmental Compliance – Business As Usual, Or Is It? Retrieved from NationalLawReview.com : https://www.natlawreview.com/article/covid-19-and-environmental-compliance-business-usual-or-it

Policy
In 2012, the Obama administration passed a climate policy requiring automobile manufacturers to reduce their vehicles’ CO2 emissions by 5% each year through 2026. This would have meant that all new passenger vehicles and light trucks would have a fuel economy of around 54 mpg by the 2025 model year. In late March, just as we are beginning to see skies clear up as a result of stay-at-home orders during the covid-19 pandemic, the Trump administration rolled back this Obama policy by finalizing a new rule requiring the auto industry to reduce carbon emissions by only 1.5% annually through 2026. The White House has received quite a bit of criticism for this rollback, even from the EPA’s own scientific advisory board, who feel that “the weakened standards will lead to dirtier air and cost consumers at the gas pump long-term” . Even after the first proposal for this policy change, advisors had stated that “there are significant weaknesses in the scientific analysis”  to justify the rationale and policy change. Nonetheless, the White House claims that this move will save consumers money by making new vehicles more affordable and will thus increase safety on the road by encouraging consumers to buy newer and thus safer cars. On top of that, the administration claims this is simply a response to the demand for more SUVs and pickup trucks that tend to be less fuel efficient.

Analysis
Back in 2018, the EPA had stated that the standards set by the Obama administration were “not appropriate and should be revised” (Uria). And now, with the finalizing of the new Trump policy, EPA Administrator Andrew Wheeler calls it a “correction” to an Obama-era climate policy that was too costly for the auto industry to comply with. Wheeler states that “Our final rule … strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry” . Elaine L. Chao, US Secretary of Transportation (and wife of Republican Senate Majority Leader Mitch McConnel) said of the new policy, “By making newer, safer and cleaner vehicles more accessible for American families, more lives will be saved and more jobs will be created” (Uria). President of the American Energy Alliance, Thomas Pyle has also praised the new policy, saying that the standards set by the Obama administration were “impossible to achieve without dramatically altering the automobile market or making the cost of vehicles out of reach for most American families. This new … rule will make cars more affordable for consumers at a time when they need it most” .

Despite the praise from within the White House for the new policy, most analysts are not convinced. Regarding claims that the new rule will make consumers more safe by making new cars more affordable, US Senator and the democratic leader on the Senate Environment and Public Works Committee, Tom Carper argues that the EPA’s “own analysis finds there would be even more premature deaths from increased air pollution” . Compared to models based off of the Obama-era standards, the new policy “will lead to nearly a billion additional metric tons of climate warming CO2 in the atmosphere” . Senator Carper also raises timely health concerns in regards to air quality, stating that “This rule will lead to dirtier air at a time when our country is working around the clock to respond to a respiratory pandemic whose effects may be exacerbated by air pollution” .

Not only will this policy create more air pollution, but critics are also skeptical that it will actually save the American people money. Environmental law professor at the University of California, Los Angeles, Ann Carlson says that “More fuel efficient cars are cheaper for consumers over the long run” . With the implementation of the new policy, “consumers will end up losing money by buying about 80 billion more gallons of gas” as a result of less fuel efficient vehicles. Even new projections from Consumer Report show that “each vehicle sold under the Trump rule will cost its owner on average $2,100 more, even if gas prices continue to fall,” according to Consumer Report’s vice president of advocacy, David Friedman . Not only that, the government’s own analysis “shows that American car companies could experience a loss of thousands of jobs by making dirtier cars that would be locked out of many overseas markets” .

The justifications for the emissions standards roll-back don’t seem to be particularly accurate or well supported, and as Richard Revesz of the Institute for Policy Integrity and dean emeritus at New York University School of Law puts it, “The rollback of the vehicle emissions standards is based on analysis that is shoddy even by the shockingly unprofessional standards of Trump-era deregulation” . Antonio Bento, professor of public policy and economics at the University of Southern California criticizes the analytical models for the new policy, saying “There’s nothing I can say to potentially defend how some of these assumptions got put in what is already a very messy model” . Regardless of the criticism, the new rule has been finalized. However, states like California and Colorado and environmental and health activist groups are expected to fight the legislation in court, and the debate of states’ rights to set their own auto emissions standards could likely reach the Supreme Court. The Editorial Board at the Los Angeles Times puts it well when they write, “The role of the federal government is not to blindly follow the market off a cliff; in the era of climate change, the government must set policies and adopt regulations that push industries to develop products that are better, safer and healthier for the planet”.

Resistance Resources

The Institute for Policy Integrity

• A non-partisan think tank dedicated to improving the quality of governmental decision making. Producing original scholarly research in the fields of economics, law, and regulatory policy. Advocating for reform before courts, legislatures, and executive agencies. https://policyintegrity.org/

Safe Climate Campaign

• A Washington-based consumer advocacy group, the Safe Climate Campaign fights global warming by working for big, specific measures to reduce greenhouse gas emissions. http://safeclimatecampaign.org/

California Air Resources Board

• Protecting the public from the harmful effects of air pollution and developing programs and actions to fight climate change. From requirements for clean cars and fuels to adopting innovative solutions to reduce greenhouse gas emissions, California has pioneered a range of effective approaches that have set the standard for effective air and climate programs for the nation, and the world. https://ww2.arb.ca.gov/homepage

Learn More (Sources):

• “Editorial: Enjoying the Clean Air? Trump Weakens Car Emissions Standards Just When We Need Them the Most.” Los Angeles Times, Los Angeles Times, 31 Mar. 2020, www.latimes.com/opinion/story/2020-04-01/editorial-trump-weakens-clean-car-standards-when-we-need-them-the-most.
• Ludden, Jennifer, and Nathan Rott. “Trump Administration Weakens Auto Emissions Standards.” NPR Environment and Energy Collaborative, National Public Radio Inc, 31 Mar. 2020, www.npr.org/2020/03/31/824431240/trump-administration-weakens-auto-emissions-rolling-back-key-climate-policy.
• Phillips, Anna M, and Russ Mitchell. “Trump Weakens Fuel Economy Standards, Rolling Back Key U.S. Effort against Climate Change.” Los Angeles Times, Los Angeles Times, 31 Mar. 2020, www.latimes.com/politics/story/2020-03-31/trump-rolls-back-fuel-economy-standards.
• Uria, Daniel. “Trump Administration Finalizes Rollback of Obama Fuel Emissions Standards.” United Press International, United Press International Inc, 31 Mar. 2020, www.upi.com/Top_News/US/2020/03/31/Trump-administration-finalizes-rollback-of-Obama-fuel-emissions-standards/6731585702176/.

Policy

As a planet, our environmental policies and the current coronavirus pandemic are undeniably linked. The way in which we manage our natural resources, such as cutting down forests, can have unintended consequences, such as exposing humans to wild animals (like bats) that, as a result, are forced to find new habitat and come in closer contact with humans and inevitably transfer disease. Likewise, just as our environmental policies can affect the chances of a future pandemic, a current pandemic can affect the status and role of existing environmental policies. Currently during this Coronavirus pandemic, we are seeing its effects on a number of existing environmental policies. Change and adaptation during times of emergency is important, but it is crucial for us to understand which changes are necessary and beneficial to communities, and which changes are simply politically motivated and beneficial only to special interest groups.

For instance, as a result of the Coronavirus pandemic, some states like Maine, Massachusetts, New Hampshire, and California have temporarily banned the use of reusable bags and temporarily overridden their respective bans on single-use plastic bags. Governor Charlie Baker of Massachusetts recently ordered a temporary repeal of local bans on single-use plastic bags and has banned the use of reusable bags in grocery stores. Governor Baker stated that given the evidence of Covid-19’s ability to reside on surfaces for extended periods of time, he felt “the risk was simply not worth it” (Crawford). This kind of adaptation might make sense in the midst of an impending crisis. However, it is important that we don’t allow war time efforts to erase the progress we have made up to this point to pass legislation that will continue to benefit the planet and our communities beyond the times of crisis. Lobbyists for the Plastics Industry Association are jumping at this opportunity to permanently roll back legislation banning single-use plastics. A letter written by the Plastics Industry Association and sent to Alex Azar, Secretary of Health and Human Services, claims that “single-use plastics are the safest choice” (Crawford), and that the department should “speak out against bans on these products as a public safety risk” (Crawford).

Legislative overrides and rollbacks aren’t the only issue. Newly proposed ‘pandemic-time’ legislation ought to be analyzed with a critical eye as well. Amid the Coronavirus pandemic, some state officials are seizing the opportunity to protect fossil fuel companies by elevating their status and classification as “critical Infrastructure.” Since the months-long protests at Standing Rock in 2016 to resist the Dakota Access Pipeline (a project of the company Energy Transfer Partners), a number of states, including Oklahoma, Louisiana, Iowa, Ohio, Wyoming, and Minnesota, have attempted to introduce “critical infrastructure” bills aimed at elevating the status and protections for fossil fuel companies. In Iowa, where this kind of legislation was passed into law back in 2018, it is now a criminal act to “protest on anything that could be conceivably understood as part of the fossil fuel industry’s ‘critical infrastructure’” (Gullapalli). Furthermore, any act “that intends a substantial and widespread “interruption or impairment of a fundamental service” (Biggers) of gas, oil, petroleum or refined petroleum products is a felony, punishable by up to 25 years in prison” (Gullapalli). A similar law passed in Louisiana in 2018 states that “Disrupting operations [of any critical infrastructure] is a crime punishable by up to 20 years in prison” (Gullapalli). The panic and distraction the Coronavirus pandemic has created now in 2020, seems to be the opportunity some other state officials have been looking for to pass this kind of legislation into law in their own states.

Three state governors, Andy Beshear (D) of Kentucky, Kirsti Noem (R) of South Dakota, and Jim Justice (R) of West Virginia have all signed legislation that impose criminal penalties for demonstrating protests against fossil fuel companies during the pandemic. Governor Beshear has categorized natural gas and petroleum pipelines as “critical infrastructure,” and thus “tampering with, impeding, or inhibiting operations of a key infrastructure asset,” is to be considered a “criminal mischief in the first degree” (Axelrod). Governor Noem of South Dakota has also signed into law a classification of oil and gas pipelines and other utility equipment as “critical infrastructure,” capitalizing on the opportunity of the pandemic to provide these companies with extra protections and importance under the law. Governor Justice in West Virginia has deemed oil, gas, and pipeline facilities as “critical infrastructure” as well, supporting efforts to provide added protections and status to these companies in the name of supposed necessity during this pandemic.

Analysis

As far as banning reusable grocery bags and lifting bans on single-use plastics, many agree that these are not normal times and being extra careful may be a wise decision at the current moment. However, evidence supporting the claim that single-use plastic bags are a safer option than cloth reusable bags, is not very convincing. According to Amanda Mae Simanek, a professor of epidemiology at the University of Wisconsin, a study in the New England Journal of Medicine found that the Covid-19 virus “could remain viable or potentially infectious on copper for four hours, on cardboard for 24 hours, on stainless steel for two days and on plastic for up to three days” (Crawford). The researchers for this study did not test cloth, but “in general viruses are less likely to be transmitted by soft surfaces than hard ones” (Crawford). Simanek also reminds us that when it comes to the ability of reusable bags to transmit the Covid-19 virus, “there haven’t been any scientific studies and CDC has definitely not made any blanket recommendations about not using reusable bags” (Crawford). Simanek and others, like Ivy Schlegel, a senior research specialist at the environmental nonprofit Greenpeace, feel that for now, to “err on the side of caution” is a reasonable practice, but according to Schlegel, when it comes to the intense response by the plastics industry during this pandemic, “what we’re seeing is an attempt to roll back legislation and sort of go back in time” (Crawford). Schlegel, and her co-authors of a recent research brief, have gone so far as to accuse the plastics industry of “exploit[ing] the COVID-19 emergency to create fear about reusable bags” (Crawford).

In regards to state protections of fossil fuel companies and the passing of “critical infrastructure” legislation, many see this as nothing more than a strategically timed effort to pass controversial laws that benefit fossil fuel interests while media attention is focused on covering the pandemic and not fossil fuel protests. According to Connor Gibson, a researcher at Greenpeace, “While we are all paying attention to COVID-19 and the congressional stimulus packages, state legislatures are quietly passing fossil-fuel-backed anti-protest laws” (Axelrod). Gibson claims that “These laws do nothing new to protect communities. Instead they seek to crack down on the sort of nonviolent civil disobedience that has shaped much of our nation’s greatest political and social victories” (Axelrod). Suspicions of this timing strategy are only further fueled when one sees a similar correlation with the timing of legislation proposals coming from the EPA and Federal Government to halt pollution monitoring requirements for the fossil fuel industry, reduce emissions standards for the automotive industry, and waive fines for fossil fuel, agriculture, and construction companies that harm local bird populations.

Resistance Resources

Environmental Integrity Project

• 501 (c)(3) nonpartisan, nonprofit watchdog organization that advocates for effective enforcement of environmental laws. Comprised of former EPA enforcement attorneys, public interest lawyers, analysts, investigators, and community organizers

Natural Resources Defense Council

• Working to ensure the rights of all people to the air, the water and the wild, and to prevent special interests from undermining public interests.

Greenpeace

• Exposing global environmental problems, and promoting solutions for future generations.

Learn More

• Axelrod, Tal. “Three States Push Criminal Penalties for Fossil Fuel Protests amid Coronavirus.” The Hill, Capitol Hill Publishing Corporation, 27 Mar. 2020, www.thehill.com/policy/energy-environment/489960-three-states-push-criminal-penalties-for-fossil-fuel-protests-amid.
• Crawford, Amy. “We Made So Much Progress On Plastic Bags. Coronavirus Could Undo It All.” Huffpost, Huffington Post, 27 Mar. 2020, www.huffpost.com/entry/single-use-plastic-bags-coronavirus_n_5e7dc718c5b6256a7a286cfb.
• Deese, Kaelan. “San Francisco Bans Reusable Bags in Coronavirus Fight.” The Hill, Capitol Hill Publishing Corporation, 2 Apr. 2020, www.thehill.com/homenews/news/490835-san-francisco-bans-reusable-bags-in-coronavirus-fight.
• Lustbader, Sarah, and Vaidya Gullapalli. “States Use Anti-Protest Laws to Protect Oil Pipelines and Criminalize Environmental Activism.” The Appeal, Tides Advocacy, 22 Aug. 2018, www.theappeal.org/states-use-anti-protest-laws-to-protect-oil-pipelines-and-criminalize-environmental-activism/.