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Biden EPA Sends Early Signal of Tough Pollution Enforcement (1)

May 28, 2021, 10:00 AMUpdated: May 28, 2021, 1:59 PM

Recent moves to intervene in air pollution fights—including a rare order to shutter the oil-spewing Limetree Bay refinery—show the Biden administration is willing to take bold steps to crack down on polluters on the edge of marginalized communities.

The Environmental Protection Agency this month temporarily halted operations at the St. Croix facility in the U.S. Virgin Islands, using an emergency shutdown order under the Clean Air Act that’s only been invoked a handful of times.

Days before EPA’s decision on Limetree, Administrator Michael Regan wrote to Chicago Mayor Lori Lightfoot with a concern about the placement of a metal shredding facility on the city’s Southeast Side. Though the letter wasn’t a direct enforcement action, it prompted the city to delay the controversial permits.

“That’s a good sign that the administration is aware of powerful enforcement tools in its arsenal, and it is prepared to use them,” Natural Resources Defense Council attorney John Walke told Bloomberg Law.

This type of active intervention also shows the EPA is poised to take a more “aggressive” approach to enforcement in the name of climate change and environmental justice “than we’ve ever seen before in any prior administration,” said Craig Johnston, a Lewis & Clark law professor and former EPA assistant regional counsel in the Reagan administration.

Refineries and chemical plants near environmental justice neighborhoods are ripe for civil and potentially criminal enforcement actions. States that were used to deference under President Donald Trump also will feel the uptick of EPA enforcement goals, attorneys say.

“There’s going to be a return to a top-down approach from EPA when it comes to enforcement and granting permits,” said Anne Idsal Austin, an attorney at Pillsbury Winthrop Shaw Pittman LLP who headed the EPA’s air office under Trump. “That’s going to cause a tremendous amount of consternation.”

‘Multiplier Effect’

EPA’s acting enforcement chief, Lawrence E. Starfield, signaled the agency’s interest in more inspections—especially around environmental justice communities—in an April memorandum. Another document on criminal enforcement is expected soon from the EPA’s enforcement arm.

EPA could tackle more pollution issues if it would bring just a few more criminal cases through its enforcement office a year, Johnston noted. Criminal actions need to prove intent to pollute in order to meet the legal standard.

Some legal observers see the potential for criminal action in cases like Limetree, which continued to operate despite being riddled with violations and pollution incidents.

“There would be a multiplier effect way beyond the individual case, in terms of the message that would be sent to the regulated world,” Johnston said.

Austin noted that some states like Texas and Louisiana that had more flexibility in the past to bring their own enforcement actions will likely be overruled on certain pollution enforcement issues under this administration.

That could translate into more EPA oversight over state authority to issue permits, said Jane Montgomery, environmental partner at Schiff Hardin LLP.

Finding creative ways to tackle environmental justice is easier through oversight and grant programs, but it could be more difficult to do within pre-existing enforcement authority, Montgomery noted.

“From the enforcement side, it’s going to take different tactics,” she said. “There’s going to be a lot more persuasion, and ‘Why don’t you try this?’ and ‘Let’s see what else we can do in this permit or in this context to address community concerns.’”

Targeted Sectors

Chemical facilities using ethylene oxide, heavy metal plants, and refineries with low emission points near environmental justice communities are also potential targets for more aggressive enforcement, attorneys and former EPA officials say.

Refineries and other plants with fence lines at the border of low-income areas or communities of color “would be wise” to make sure they are in full compliance under this new administration, said Earth & Water Law LLC partner John Irving.

“We will see EJ considerations used for enforcement targeting, increased monitoring, and the use of enforcement tools like injunctive relief and Supplemental Environmental Projects in settlements,” Irving said in an email.

Refineries and power plants could be a “good target rich environment” for enforcement of rules on new and modified emission sources—which was ramped up under Obama and pulled back under Trump, said Bruce Buckheit, a former EPA air enforcement director.

“You can also expect for a number of reasons—including their connection to climate change—that the agency will go back and take a good hard look at whether the power sector has continued violations of the new source review rules,” Buckheit said.

This could present some companies with a choice: either spend money required to comply with requirements for modified units, or just shut down, Buckheit added.

Interagency Enforcement

Enforcement capabilities of other agencies could also bolster the EPA’s environmental justice goals, according to Montgomery.

This is already being tested in a Chicago-based investigation launched by the U.S. Department of Housing and Urban Development into alleged discriminatory zoning around the General Iron relocation from north Chicago to the Southeast Side. It threatened to cut off housing assistance to the city or initiate Justice Department enforcement action if the city withheld requested documents.

Southeast Side residents asked the Housing Department to look into the city’s zoning actions, which is rooted in the decision to move General Iron and its emissions to a neighborhood overburdened with preexisting pollution. EPA also launched its own investigation, giving the pollution issue a double layer of federal oversight.

“Creating this whole government approach that Biden has might make enforcement of environmental issues a broader initiative across the government, as opposed to just in the EPA world,” Montgomery said.

(Added information from Bruce Buckheit in graphs 19-21.)

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editor responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com

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