New EPA Enforcement Guidance Emphasizes Deference to States

Michael J. Quinn
Director, Administrative Law and Litigation Departments and Managing Director Portsmouth Office
Published: LinkedIn
February 12, 2018

The Environmental Protection Agency’s Assistant Administrator issued a memorandum to all of EPA’s Regional Administrators in late January, entitled Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States. This bureaucratically titled memorandum, issued by one of the highest ranking EPA officials in Washington, could have significant effects in the States.

Specifically, this interim guidance (not a law, and not an enforceable rule) establishes that in most circumstances, EPA will defer to the states on enforcement of violations of federal environmental laws. As explained by EPA, the agency will “generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs…” So, for example, when EPA itself uncovers environmental violations at a facility, the new, interim policy makes it clear that EPA should allow the State in which the facility is located to take the lead on enforcement. This varies from the enforcement hierarchy that has generally existed in the past.

There are limits to this deference. For example, EPA will still be the lead enforcement agency in response to emergency situations when there is a significant risk to public health; when “significant” noncompliance is found and not being addressed by a State in a timely way; or, when “serious” violations are uncovered that warrant criminal enforcement.

Nevertheless, it is clear that going forward, EPA intends to rely more heavily on State enforcement of federal environmental laws, and State enforcement agencies need to be prepared for these increased responsibilities