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The President’s COVID-19 Executive Order Easing Regulatory Burdens

On May 19, 2020, President Trump issued an Executive Order (EO) intended to combat the unprecedented effect COVID-19 has had on the American economy, by directing agencies to remove or ease regulatory barriers to spur economic growth.  In general, the EO directs agencies to ease regulatory and enforcement burdens that may inhibit economic recovery, provide guidance on what the law requires, recognize the efforts of regulated industries to comply with the law, and ensure fairness in administrative enforcement and adjudication. Perhaps most notably, the EO is written broadly enough that agencies may look beyond COVID-19-related impacts when considering how to implement the EO.

The EO directs the leaders of all agencies to take a number of immediate actions, which include:

  • Emergency Authorities – Using “any” statutory or regulatory emergency authorities available to them to support the economic response to the COVID-19 outbreak and to promote economic recovery through non-regulatory actions.

  • Easing Regulatory Standards & Enforcement Discretion – Identifying regulatory standards that may inhibit economic recovery and take action to “temporarily or permanently” rescind, modify, waive, or exempt the regulated community from the requirements. With regard to these regulatory standards, the EO states that agencies should “consider” exercising temporary enforcement discretion or appropriate extensions of time for enforcement agreements.  Notably, some agencies have already issued temporary policies easing regulatory burdens and exercising enforcement discretion in response to COVID-19.  For example, in March, EPA issued a temporary enforcement policy, followed by an interim guidance in April, on impacts to operations at cleanup sites resulting from COVID-19.  DOJ likewise implemented a temporary penalty policy to afford relief to parties owing stipulated penalty payments to the federal government under consent decrees.

  • Compliance Assistance for Regulated Entities – Considering establishing public policies declining enforcement against regulated entities that attempt in good faith to comply with “applicable statutory and regulatory standards.” The EO identifies a reasonable attempt to comply with federal guidance against the spread of COVID-19 to be one rationale for agencies to decline enforcement. In the environmental context, EPA’s temporary enforcement policy noted above may already provide the relief contemplated by the EO, but other agencies such as the US Army Corps of Engineers and the US Fish and Wildlife Service have not yet issued similar policies and are now directed to at least consider doing so.

  • Fairness Principles in Administrative Enforcement and Adjudication – Revising procedures and practices in accordance with enumerated “principles of fairness.” While it is important for the public and regulated community to read all of the principles, we highlight the following as particularly important:

  • “The Government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving compliance.”

  • “Administrative adjudicators should be independent of enforcement staff.”

  • “Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.”

  • “Administrative enforcement should be free of unfair surprise.”

  • “Agencies must be accountable for their administrative enforcement decisions.”

  • Review of Regulatory Responses for Permanency – Reviewing temporary rescission, suspension, modification, or waiver of regulatory standards in response to the COVID-19 emergency or this EO, such as the EPA temporary enforcement policy and DOJ temporary penalty policy, to determine whether such actions should be made permanent to promote economic recovery. This provision also includes a reporting requirement.

The Director of the Office of Management and Budget has been tasked with monitoring compliance with the EO and issuing implementation guidance, as necessary.

The EO is only the first, albeit significant, step in easing regulatory and enforcement burdens to spur economic growth in the midst of the COVID-19 emergency.  As with any EO, the current regulatory landscape remains in place until individual agencies implement the President’s directives.  We will monitor these developments, including opposition that will undoubtedly result from various public interest groups and members of Congress. In the meantime, companies should continue to make every effort to comply with applicable regulatory requirements and seek assistance from outside counsel as circumstances require.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.

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About this Author

Todd S. Mikolop Environmental Attorney Hunton Andrews Kurth Washington, DC
Counsel

Todd, a former environmental crimes prosecutor for the US Department of Justice, advises and defends clients in internal investigations and environmental enforcement actions and counsels clients in federal permitting programs.

Clients faced with crisis situations turn to Todd for advice. His extensive government experience from previous roles as a federal prosecutor in the US Department of Justice and as a judge advocate in the US Coast Guard prove invaluable when conducting internal investigations and defending enforcement actions for companies facing allegations of wrong doing or...

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Lauren A. Bachtel Environmental Attorney Hunton Andrews Kurth Washington, DC
Senior Attorney

A former US Department of the Interior and American Wind Energy Association lawyer, Lauren draws on her diverse experience to navigate clients through complex permitting and compliance issues that arise under a host of federal environmental statutes and regulations. She also advocates for clients during related administrative rulemakings and litigation.

Lauren has extensive experience with permitting and litigation under the National Environmental Policy Act (NEPA), Mineral Leasing Act (MLA), Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA) and Outer Continental Shelf Lands Act (OCSLA). She also has significant experience representing clients on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and hazardous waste matters.

She has represented energy industry coalitions on various regulatory and administrative matters before the Bureau of Ocean Energy Management (BOEM), the Bureau of Land Management (BLM), the US Fish and Wildlife Service (FWS) and the Federal Energy Regulatory Commission (FERC). Lauren has deep experience drafting comments on administrative rulemakings, advising clients on policy and regulatory clarifications and negotiating proposed legislative bills as well as with federal permitting and litigation. She also has advocated on behalf of energy clients regarding carbon policies and the repeal and replacement of the US Environmental Protection Agency’s Clean Power Plan.

As an Attorney-Advisor for DOI’s Office of the Solicitor, Lauren worked with BLM, FWS and the US Department of Justice (DOJ) on rulemakings, administrative actions and litigation that impacted the oil and gas and coal industries. That experience includes working on the oil and gas venting and flaring rules, the coal leasing moratorium and its associated programmatic environmental impact statement, and instruction memoranda implementing the agencies’ regulations. Along with assisting with DOI regulation implementation, Lauren also worked with BLM and DOJ on the environmental review and associated litigation for high-profile coal leasing matters throughout the country and counseled agencies on matters concerning the Surface Mining Control and Reclamation Act (SMCRA), CERCLA, OCSLA, the Freedom of Information Act (FOIA) and the Bankruptcy code.

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Alexandra Hamilton Environmental Hunton Andrews Kurth Washington, DC
Associate

Alexandra focuses on environmental issues involving regulation, compliance, enforcement and litigation.

She represents clients on regulatory matters in federal appellate and district court litigation, advises clients during the rulemaking process for federal environmental regulations under the Clean Air Act and counsels clients on regulatory compliance related to chemical and toxic substances. Additionally, Alexandra has notable experience working on enforcement matters under the Clean Water Act.

Relevant Experience

  • Advises clients on EPA...
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