In May, President Donald Trump issued a new Executive Order (EO), “Executive Order on Regulatory Relief to Support Economic Recovery.” This is an ambitious and bold EO that is likely to have both strong support and strong opposition.
This administration’s policies have been a lightening rod for environmental groups for the last three and a half years (e.g., redefining waters of the United States). Depending on how agencies respond to this EO, there will be plenty of controversy in the weeks and months ahead.
The EO was issued with the juxtaposition of the current economic hardship from the COVID-19 shutdown. “Many businesses and non-profits have been forced to close or lay off workers, and in the last 8 weeks, the Nation has seen more than 36 million new unemployment insurance claims.” And with this statement, the EO lays out the plan for regulatory relief.
Excerpts From Executive Order
Below are just a couple of excerpts from the Executive Order directed to the federal agencies.
“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.”
“The heads of all agencies shall consider whether to formulate, and make public, policies of enforcement discretion that, as permitted by law and as appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order, 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.”
Obviously, the EO has much more detail, but these two sections set the tone.
Executive Order and Environmental Regulation
With respect to the second excerpt above, one lawyer said, “As far as I can tell, Trump is telling agencies that they should only take enforcement action against persons who willfully violate environmental laws.”
This same lawyer said, “My advice to my clients, and I mean this in all seriousness, is pretty simple. Take steps to carefully document your good faith efforts at compliance – and keep a copy of this EO in your back pocket at all times.”
From a blog by the Aikin Group, “It remains to be seen how the U.S. Environmental Protection Agency (EPA) (and, frankly, other regulatory agencies) will respond to the Order in ongoing and future rulemaking and enforcement decisions. EPA itself stated it is ‘continuing to do its part to address COVID-19 while moving forward with a regulatory reform agenda…’ ”
A blog by Sidley states, “At a minimum, the new EO provides a basis for arguing for COVID-19 relief in enforcement proceedings, including in negotiating settlements.”
States will most certainly have a say in enforcement of environmental regulations, especially those that are authorized by the EPA under the various federal regulations. But how anxious will states be to step up environmental enforcement action when they and their constituents are experiencing the unforeseen economic woes from COVID-19? Throw into this mix an election year, and you have a formula for policy conflicts.
This Executive Order is pretty bold in it’s potential scope. It will be worth watching how this unfolds in the coming weeks. How will the agencies respond to the EO? How will environmental groups respond? What will the states do with respect to enforcement? In the meantime, it might not be such bad advice to “keep a copy of the Executive Order in your back pocket.”
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