Challenging Efforts to Weaken Regulatory Enforcement

In January 2020, the White House Office of Management and Budget (OMB) issued a request for information regarding potential changes to regulatory enforcement and adjudication. In the request, OMB solicited proposals that would limit the ability of federal agencies to investigate and enforce laws that protect the environment, public health, and the civil rights of American citizens. The request followed an executive order signed by President Trump in October 2019 that accused some federal agencies of having unfairly enforced federal regulations and directed federal agencies to no longer consider noncompliance with agency guidance documents alone as a regulatory violation.

In March 2020, California Attorney General Xavier Becerra led a coalition of five attorneys general in filing comments criticizing OMB for seeking proposals to weaken federal regulatory enforcement. In their comments, the attorneys general questioned the purpose of the request, noting that OMB presented no evidence or examples that demonstrate how the current system is deficient. The attorneys general highlighted that enforcement actions under this administration have actually declined, contradicting OMB’s premise that enforcement actions are increasing. The coalition also emphasized that the Administrative Procedure Act already imposes extensive procedural requirements that ensure due process for individuals during enforcement and adjudication. The attorneys general urged OMB not to move forward with changes that would weaken regulatory enforcement, noting that if federal regulatory enforcement becomes lax, the burden of protecting the public and the environment will fall more heavily on the states. 

Protecting Environmental Regulations During the Coronavirus Pandemic

In March 2020, the EPA issued a memo announcing a temporary suspension of monitoring and reporting requirements under a range of environmental laws during the coronavirus pandemic. The policy offers “No Action Assurance” to facilities the agency deems essential, which could include oil refineries, chemical plants and power plants.

In April 2020, New York Attorney General Letitia James led a coalition of fourteen attorneys general in submitting a letter to the EPA urging the agency to rescind its policy. California Attorney General Becerra also sent a letter to the EPA expressing serious concern with the policy. In their letters, the attorneys general highlighted the dangers of easing regulatory enforcement policies meant to protect public health and the environment in the midst of a public health crisis. The coalition also cautioned that the policy leaves states, tribes and the public without a way to know when an environmental regulation has been violated, potentially leaving many communities at risk of exposure to harmful pollution without warning.

In May 2020, New York Attorney General James led a coalition of nine attorneys general in filing a lawsuit challenging the EPA’s non-enforcement policy. In their complaint, the coalition noted that the EPA exceeded its authority in issuing a broad-open ended policy allowing regulated parties to self-determine when compliance with federal environmental law is not necessary, rather than exercising enforcement discretion, as authorized by law.  The attorneys general also highlighted that the EPA failed to consider the impacts that relaxing environmental enforcement obligations could have on public health – while in the midst of a public health crisis – despite the longstanding recognition that those obligations protect public health by informing communities of pollution hazards and deterring industry noncompliance with pollution limits.

In June 2020, the coalition led by Attorney General James filed a motion for a preliminary injunction in a federal district court regarding the arbitrary and capricious “No Action Assurance” policy. The attorneys general highlighted the various irreparable harms that would arise from relaxed enforcement of the Clean Air Act and the Clean Water Act under the policy. Further, they noted environmental justice concerns as minority and low-income communities would bear the brunt of increased industry pollution stemming from weakened monitoring and reporting obligations. The filing of the motion was unopposed by the EPA and granted by the court. 

Later that month, the EPA released a new memo announcing August 31, 2020 as the selected termination date of the temporary non-enforcement policy. A provision in the memo allows for the possibility of an earlier termination date – either nationally or locally – provided that the EPA issues a notice at least seven days in advance. With the court’s approval, the parties agreed to adjourn the briefing schedule in the litigation in anticipation of the EPA’s withdrawal of its non-enforcement policy on August 31, 2020. In September 2020, with the March 2020 pandemic enforcement policy no longer in effect, New York Attorney General James dismissed the states’ lawsuit challenging the policy.