By Charles de Saillan in the Santa Fe New Mexican
“A ball of confusion,” the Temptations sang in 1970, “that’s what the world is today, hey, hey.” Fifty years later, amid COVID-19, those lyrics ring eerily true.
On March 26, the Environmental Protection Agency added immensely to the current state of confusion by announcing in a memorandum that during the COVID-19 pandemic it would relax its enforcement of environmental requirements. The memo states, “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance.” The memo has been widely circulated.
Environmental groups and former EPA officials have rightly criticized the memo. Never before in its history has EPA announced such a policy of blanket nonenforcement.
According to one former EPA official, the memo “tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ‘caused’ by the virus pandemic.”
Without “routine monitoring,” moreover, there is no way to tell whether a polluting industry is in compliance — or seriously out of compliance — with its permit limits.
The oil and gas industry has much to gain from nonenforcement of monitoring and reporting requirements. The industry is a major source of methane emissions nationally and the primary source in New Mexico. Emissions result from unintentional leaks and intentional venting of methane from oil and gas production facilities. Methane is a potent greenhouse gas.
Shortly before the EPA issued the memo, the American Petroleum Institute sent a letter to President Donald Trump urging “assistance in temporarily waiving non-essential compliance obligations” such as EPA requirements for “routine testing and reporting.” In a separate letter to EPA Administrator Andrew Wheeler, the institute states that as to “non-essential compliance obligations,” the “industry is seeking temporary relief through enforcement discretion, waivers or revised compliance timeframes in response to the COVID-19 pandemic.” Among many other requirements, API requests “relief” from the methane Leak Detection and Repair (LDAR) requirements.
The industry seems to have gotten its wish. Praising the EPA memo, an API spokesman enthused, “Temporary relief from these requirements will allow operators and suppliers to prioritize their resources on those critical activities to enable the continued production of fuels and products.”
Many oil and gas operators thus believe that the obligation to comply with methane monitoring and reporting requirements has been waived during the COVID-19 pandemic. That belief is indicative of the confusion the EPA memo has wrought.
EPA cannot waive the requirements of environmental laws or regulations through a policy memo. Only Congress can change our federal environmental laws. While EPA can amend its regulations, it must go through a lengthy public process to do so.
All that EPA has done — all that it can do — is announce that it will not take steps to enforce certain legal requirements. The monitoring, reporting and other requirements nevertheless remain in effect and legally binding.
Furthermore, EPA is not the only environmental cop on the beat. Most enforcement of environmental law is conducted by state agencies — in New Mexico by the Environment Department. The Environment Department has not adopted this EPA blanket enforcement policy.
Moreover, all of the federal environmental laws include citizen suit provisions. Any interested person, including the New Mexico attorney general, a tribe or an environmental organization, can bring a lawsuit to restrain violations and to impose civil penalties of tens of thousands of dollars per day.
There should be no confusion. The EPA memo notwithstanding, operators of oil and gas facilities, as well as other polluting facilities, remain obligated to comply with all monitoring, reporting and other requirements of environmental laws and regulations. Failure to comply can lead to stiff penalties.
Charles de Saillan is a staff attorney at the New Mexico Environmental Law Center. The Law Center is part of a coalition of environmental and community organizations that support strong regulations to limit methane emissions from oil and gas production to combat climate change.