President Trump Signs COVID-19 Regulatory Executive Order

On May 19, 2020 President Trump signed an Executive Order (EO) titled “Executive Order on Regulatory Relief to Support Economic Recovery”.   The EO directs Federal agencies to evaluate regulations, policies, and enforcement discretion approaches among other items that will assist businesses in navigating the uncertainty that has been brought about by the COVID-19 pandemic.  The following items are among a few covered under the EO:

1. Direction that the agencies “should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility”.
2. Direction that the agencies “shall identify regulatory standards that may inhibit economic recovery and shall consider taking appropriate action, consistent with applicable law, including by issuing proposed rules as necessary, to temporarily or permanently rescind, modify, waive, or exempt persons or entities from those requirements…”.
3. Direction that the agencies “shall consider the principles of fairness in administrative enforcement and adjudication listed below, and revise their procedures and practices in light of them, consistent with applicable law and as they deem appropriate in the context of particular statutory and regulatory programs…”.

In short, the EO asks regulatory agencies to consider where existing regulatory requirements can be removed or streamlined to provide confidence to businesses that are reopening or pressing forward with their operations amid the pandemic.  It also asks for regulatory agencies to consider enforcement discretion measures, where possible, when the pandemic has made it difficult to comply with certain routine obligations.

So what does it mean for U.S. EPA?  For its part, U.S. EPA has already issued an enforcement discretion guidance document addressing routine environmental obligations and how they will be handled during the pandemic when accessing certain resources (contractors, stack testers, etc.) is difficult or impossible in some cases.  But what about regulatory streamlining?  U.S. EPA is already working on a number of air quality construction permitting reforms but those have been occurring for several years and have slowed in pace recently.  It’s difficult under the structure of the Clean Air Act to simply remove rules, and a separate EO directs U.S. EPA to issue any broadly applicable guidance in draft form for public comment before finalizing, so we wouldn’t expect much additional activity from U.S. EPA based on this EO alone.

If U.S. EPA were to introduce new rulemaking designed to help to provide clarity or to streamline other existing obligations, even that would be subject to possible scrutiny under the Congressional Review Act (CRA) under the next congress depending on its political makeup.  The CRA allows the next congress to review and potentially overrule any new regulation that is issued during the final 60 working days of the current congress, which is projected to be anything issued after May 19, 2020.  Any such rulemaking effort would also be subject to litigation and the uncertainty that follows.

However, it is possible that this EO could be used to promote easier and quicker approval of items like test waivers, alternate monitoring requests, and other submittals or permit applications that request alternate approaches that relieve testing and monitoring burden.

Put all together, we expect U.S. EPA to continue to work on their ongoing priorities and to utilize their enforcement discretion guidance where it is appropriate.  It is our understanding that states have differing opinions on how to implement the U.S. EPA enforcement guidance, and we are tracking that as well.  We will keep you updated on the impact, if any, of the May 19, 2020 EO moving forward.  Feel free to contact me at (908) 328-9429 or at cmccall@all4inc.com with questions.