The issue of enforcement during the COVID-19 outbreak became contentious this week, when the Natural Resources Defense Council (NRDC) filed a lawsuit against U.S. EPA in the U.S. District Court for the Southern District of New York over the temporary regulatory enforcement policy that U.S. EPA issued three weeks ago on March 26.  NRDC’s April 16th lawsuit follows its April 1st Petition to U.S. EPA asking the Agency to issue an emergency rule requiring that companies that intend to avail themselves of the temporary regulatory enforcement policy publicly disclose, in writing, when they stop monitoring or reporting their air and water emissions.  The lawsuit seeks an order requiring U.S. EPA to consider and respond to the Petition.  Given the impacts on COVID-19 to the court system, it will be interesting to watch whether NRDC can obtain relief before the expiration of the temporary policy.

As discussed in a previous blog post, U.S. EPA’s temporary regulatory enforcement policy outlines how the Agency intends to approach regulatory enforcement of environmental legal obligations during the pandemic.  U.S. EPA states that while it expects compliance, it will not seek penalties where U.S. EPA agrees that a violation is attributable to COVID-19.  Essential to obtaining enforcement relief under that temporary policy is ensuring proper notice to U.S. EPA of anticipated noncompliance and diligent documentation of the issue, including steps taken to return to compliance as quickly as possible.  In response to strong criticism from environmental groups, including NRDC, and certain states, U.S. EPA prepared a follow-up Frequently Asked Questions page to clarify the Agency’s expectations with respect to ongoing compliance during the pendency of the COVID-19 pandemic.  U.S. EPA also has issued additional guidance documents in specific areas:

  • temporary advisory to the regions and states about how to implement the temporary regulatory enforcement policy as it relates to NPDES reporting requirements that are tracked in U.S. EPA’s Integrated Compliance Information System for the NPDES program; and
  • interim guidance to its regional administrators on when to suspend cleanup activities that are being conducted under the range of federal remediation programs, including Superfund cleanups, RCRA corrective actions, TSCA PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank actions.  This interim guidance attempts to formalize what had been an informal, case-by-case assessment of when cleanup activities should be put on hold due to COVID-19 challenges.  The guidance identifies a number of site-specific factors that Regions should weigh against the importance of the cleanup and potential threats to human health and the environment in order to ultimately determine whether field response actions should continue or be limited in any way, including being temporarily suspended.  According to U.S. EPA, it has reduced or temporarily halted on-site work at approximately 34, or 12% of, EPA- or PRP-led National Priority List sites as of April 1.

It appears that U.S. DOJ is adopting a similar approach to enforcement in the face of COVID-19 challenges.  An internal letter, dated March 31, 2020, has been made public, which directs all U.S. Attorneys to “cease affirmative civil debt collection and enforcement actions” effective immediately.  The policy is temporary through at least May 31, 2020 and is intended “to mitigate the financial impact of coronavirus (COVID-19).”  This policy does not apply to criminal penalties.  Additionally, as U.S. DOJ clarified in a follow-up internal letter dated April 13, this temporary policy does not impact the Department’s ability to investigate, file complaints, litigate to judgment or settle any enforcement matter.  The temporary suspension does not apply to ongoing litigation, appeals or cases that are not subject to a final, non-appealable judgment.  Although this policy is consistent with U.S. EPA’s commitment to defer enforcement for violations caused by COVID-19, it is likely to be the subject of additional scrutiny by environmental NGOs.

Checking the position of the state where a company or facility is located is also important.  States, which have primary enforcement over environmental laws, have already indicated that they may take a different approach from U.S. EPA to enforcement and cleanups during the COVID-19 pandemic.  And, those approaches vary widely.  Most recently, in response to the federal government’s latest policies, California EPA issued a press release reiterating their commitment to environmental compliance the during COVID-19 pandemic.  While the state agency has indicated that relief could be available under “clearly articulated circumstances,” they intend to “fill any enforcement gaps left by U.S. EPA’s decision to reduce environmental oversight.”  


Jessica Wicha is a counsel in the Firm’s North American Environmental Practice Group. Her practice covers the spectrum of environmental legal matters, including regulatory compliance counseling, enforcement defense, and environmental aspects of complex business transactions. She strives to provide practical solutions to her client's environmental legal challenges, including day-to-day compliance issues, remediation matters, emergency spills and releases, and regulatory enforcement. Ms. Wicha also has extensive experience advising on environmental transactional matters across a wide range of industry sectors and global jurisdictions. This work includes scoping and coordinating environmental due diligence, managing environmental consultants, advising clients on environmental liability and risk allocation issues and tools, drafting and negotiating environmental contractual language, and coordinating permit transfers.


Mr. Sanders leads Baker & McKenzie’s U.S. environmental litigation practice. He represents both domestic and non-U.S. corporations before federal, state and administrative courts in environmental, class action, mass tort and product liability litigation, government enforcement, permitting and criminal proceedings. He counsels companies with respect to compliance with CERCLA, RCRA, CWA, TSCA, OSHA and state environmental and product regulations. Mr. Sanders advises multi-national and domestic corporations on environmental, health and safety statutory requirements and legal risks with respect to products sold or marketed in the United States, including responding to product liability claims and recalls. He also advises clients on environmental, health & safety risks and liabilities in transactions.