If you’re feeling overwhelmed by the whiplash of today’s political landscape (and how it affects the future of environmental regulations), you aren’t alone. This week we sat down to talk to two of the industry’s top environmental lawyers to set the record straight for EHS leaders who need to know where environmental regulations stand and what trends could impact them.
Overall, the main takeaways from our discussion included:
- The steady increase of regulations and reporting, regardless of the changing political landscape
- A restored memorandum between the EPA and DOJ to hold individuals responsible for corporate wrongdoing
- Recent EPA news and how it impacts future regulatory enforcement
Read more below or watch the full webinar here.
How has Environmental Policy Changed?
Although the Trump administration brought a lot of talk about regulatory changes and attempts to shift enforcement policy, the previous environmental framework held firm. We’ve seen a continued increase in violations with penalties that started at the end of the Obama administration.
“What went largely unnoticed at the end of the Obama administration was the dramatic increase in the potential penalties that could flow from violations of the major environmental statutes. The cost of living adjustment was established so that the penalties increased either 2x or threefold.”Gary LucksPartner at Bay Area Law Group
Individual Liability for Corporate Wrongdoing
The EPA and DOJ also reestablished an agreement that requires that companies under investigation who wish to receive cooperation credit in investigations of misconduct must report all individuals involved in the alleged misconduct.
“The DOJ and the EPA have started incentivizing the defendants to identify the individual(s) before they can settle,” Lucks noted, citing the Yates Memorandum.
As a result, specific officials within a company will not be shielded from prosecutors if they are involved either through willful misconduct or simply negligence.
EPA in the News: What Will Impact Businesses Moving Forward?
In a frenzy of recent news regarding federal regulatory enforcement, here is a brief summary that environmental leaders might find impactful in the near future (if not right now).
- The Supreme Court ruled that the EPA did not have the authority to force energy companies to shift from fossil fuels to renewables. While this impacts Biden’s climate goals, the EPA can still regulate greenhouse gas emissions at a facility level.
- The EPA has announced an end of CAA exemptions for emission exceedances during startup, shutdown, or malfunctions – meaning companies taking advantage of that defense will need to find new ways to stay compliant.
- With the controversy surrounding the WOTUS definition, the EPA will release a new proposal by the end of 2022. Still, the Supreme Court decision on Sackett vs. EPA is not expected until Summer 2023. Until the courts sort it out, the EPA is reverting to the pre-Obama definition.
- A $50 billion investment into the water sector – the largest federal investment in water ever made – has allowed the EPA to strengthen the nation’s drinking water and wastewater systems.
- The EPA is preparing to designate two chemicals from a broad group of substances called PFAS (often referred to as “forever chemicals”) as hazardous substances, which could drastically impact reporting requirements and clean-up work. In addition, they have been added to TRI reporting and will likely be included in NPDES permits for the CWA, resulting in an additional focus on BMPs, sampling, and reporting.