Our lives have turned around given the COVID-19 pandemic. How does this affect federal and state environmental laws? Most of these laws have emergency provisions to bypass or waive certain requirements. It is too early to know which laws are or will be affected due to this crisis, but some future changes can be anticipated.
One example is the dire need for more medical facilities to treat the sudden crush of COVID-19. Building such facilities normally requires the developer to get approved an environmental impact statement (EIS) and obtain environmental permits for potentially large source of air pollution and chemical management, solid waste, and wastewater treatment systems. However, we are clearly seeing under the federal declaration of an emergency in mid-March and state government declarations the rapid construction of medical facilities, typically in large facilities unable to be used for its intended purpose during the crisis, such as a convention center, without permits dictated by the National Environmental Protection Act (NEPA) or EISs.
NEPA contains no emergency exemptions. However, the White House agency, the Council on Environmental Quality, has authorized agencies to go forward with projects independent of NEPA in emergency situations. In addition, after 9/11, the USEPA used that situation to allow certain actions that would otherwise violate the Clean Air Act, such as for trucks needed at the sites during the recovery period.
New York, the state hit hardest by COVID-19 as this is written, has regulations that exempt from needing an EIS emergency actions that are immediately necessary for the protection of life, health, property or natural resources, provided that such actions are directly related to the emergency.
New York also allows its governor to issue an executive order to temporarily suspend any rule or regulation of any agency during a state disaster emergency, if compliance with such a rule would hinder any action necessary to cope with the disaster. Governor George Pataki declared an emergency the day after 9/11 and suspended regulations regarding transportation and management of solid waste during the debris removal operation and the building of the Freedom Tower at 7 World Trade Center. The current governor, Andrew Cuomo has declared a state emergency over COVID-19 and is prepared to suspend rules or policies in order for hospitals to properly function to serve the growing number of distressed patients.
How might the current COVID-19 pandemic affect companies complying with environmental requirements? How might staff illness, sudden lack of revenue (needed to comply with rules), supply chain disruptions, and change in priorities affect firms in the near term? Will agencies recognize the stress that companies are under and relax rules in order temporarily to allow them to survive? Might agencies relax certain rules altogether for all subject facilities?
What happens to companies that are in a consent decree with an agency to perform specific environmental obligations in an emergency? There may be situations where the COVID-19 pandemic may be considered a force majeure event, excusing the firm from some obligations as there is a true inability to obtain equipment needed to comply. Is a company’s lack of revenue due to a lockdown considered force majeure? Traditionally, lack of funds does not qualify, but recent business declines have been so great and sudden that some believe that this should excuse a company from compliance, too.
Please note that this article is not meant to be interpreted as a legal document. It is meant as a general overview. On all related matters, please refer to qualified, experienced legal counsel before making any decisions. CCES can assist you on technical matters related to environmental compliance, providing you with technical options to comply with regulatory, permit, or consent order requirements or standards. Contact us today at 914-584-6720 or at karell@CCESworld.com.