Executive Order of May 19
On May 19, 2020, the White House unveiled Trump’s executive order (“EO”) that instructs federal agencies to consider the economic effects of the current pandemic in undertaking enforcement and regulatory compliance. The EO means that the USEPA will, more than likely, revise its recent March 26 general guidance related to enforcement during the pandemic.
The EO directs agencies to promote “regulatory relief” during gradual reopening of the economy. Specifically:
- The EO directs agencies to exercise “appropriate temporary enforcement discretion or appropriate temporary extensions of time.”
- The EO requests agencies to issue guidance to the regulated community on how each agency plans to “decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards, including those persons and entities acting in conformity with a pre-enforcement ruling.”
- The EO authorizes agencies to formally identify and invoke emergency authority under current law to modify existing regulatory requirements.
- The EO directs agencies to revise their procedures in administrative adjudications to, among other things, reflect that the government bears the burden of proving an alleged violation rather than the subject of compliance being required to prove compliance.
For the regulated community, the EO provides a basis for arguing for pandemic relief in enforcement proceedings and settlements.
In that regard, the US EPA’s March 26, 2020, guidance is subject to litigation filed in the Southern District of New York, by various state attorneys general and environmental organizations, in New York v. EPA, No. 20-cv-03714 (S.D.N.Y May 13, 2020), and Natural Resources Defense Council v. Bodine, No. 20-cv-03058 (S.D.N.Y. Apr. 16, 2020).
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WDJiii