On March 12, the US Environmental Protection Agency (EPA) issued a memorandum announcing significant revisions to the agency’s enforcement policies, entitled “Implementing National Enforcement and Compliance Initiatives Consistently with Executive Orders and Agency Priorities.” The memo directs EPA’s civil and criminal enforcement staffs, revising existing Biden-era policies (which I last wrote about HERE) to conform with President Trump’s executive orders (EOs) and policy statements by new EPA administrator Zeldin. The remainder of this note summarizes this new direction.
What is EPA’s approach to enforcement?
EPA applies criminal, civil, and administrative enforcement authority granted by the many federal laws it administers. To do so, the agency issues general policies tying enforcement efforts to environmental protection efforts developed under these laws, general policies organizing and prioritizing enforcement efforts, and National Enforcement and Compliance Initiatives (NECIs) targeted to specific laws, environmental media, or other issues. The new memorandum affects all these approaches.
Which Presidential and Administrator pronouncements does the new memo reference?
The new memo addresses specific EOs and directives issued by President Trump, and revises several existing policies. These include the following:
- EO 14151 “Ending Radical and Wasteful Government DEI Programs and Preferencing”
- EO 14154 “Unleashing American Energy”
- EO 14156 “Declaring a National Energy Emergency”
- EO 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”, which creates new directions and revokes several earlier EOs including EO 12898 (2/11/94) “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations)”
- EO 14219 “Ensuring Lawful Governance and Implementing the President's “Department of Government Efficiency” Deregulatory Initiative”
In addition, the new memo cites Administrator Zeldin’s “Powering the Great American Comeback Initiative” (which I discuss HERE)
What enforcement policies does the new memo provide?
The memo provides several “directions” to EPA enforcement personnel:
- Environmental Justice – “Pursuant to the President’s Executive Orders, environmental justice considerations shall no longer inform EPA’s enforcement and compliance assurance work. … All enforcement and compliance assurance actions and decisions must now be careful to avoid using or relying upon those considerations unless expressly required by statute or regulation. … no consideration may be given to whether those affected by potential violations or those in the vicinity of facilities or other sources of pollution constitute minority or low-income populations.”
- Unleashing American Energy – “… enforcement and compliance assurance actions shall not shut down any stage of energy production (from exploration to distribution) or power generation absent an imminent and substantial threat to human health or an express statutory or regulatory requirement to the contrary.”
It requires that enforcement under several existing NECIs be “adjusted” to conform with new Presidential and agency policy directives. These include:
- Mitigating Climate Change – “… enforcement and compliance will no longer focus on methane emissions from oil and gas facilities. … Enforcement and compliance assurance regarding hydrofluorocarbons (HFCs) shall focus on the unlawful import and subsequent sale of HFCs. Enforcement and compliance assurance regarding landfills shall return to the core enforcement program.”
- Protecting Communities from Coal Ash Contamination – “… henceforth enforcement and compliance assurance for coal ash at active power plant facilities shall focus on imminent threats to human health.”
- Reducing Air Toxics in Overburdened Communities – “… [enforcement] will no longer focus exclusively on communities selected by the regions as being “already highly burdened with pollution impacts” … Instead, enforcement and compliance assurance will target the worst pollution from HAPs affecting human health, wherever that may be found, in accordance with the above directives regarding environmental justice.”
- Chemical Accident Risk Reduction – “… [Eliminates the focus] on two particular hazardous substances, anhydrous ammonia and hydrogen fluoride, the latter of which is used in petrochemical manufacturing. … Future inspections should prioritize high-risk facilities regardless of the regulated chemicals utilized at the facility.”
- Other Rules – “EPA may reconsider past administrative actions, including rulemakings.”
What happens now?
The new Policy became effective immediately, as a restatement and redirection of EPA’s enforcement policies. Complete implementation will presumably take time as managers assimilate these responsibilities, and as training, procedures and information management systems are developed fully
Self-assessment checklist?
Are any of the organization’s activities subject to compliance requirements administered by EPA – and to enforcement for non-compliance?
If so, does the organization ensure its compliance with applicable requirements (which would obviate enforcement for noncompliance)?
Where can I go for more information?
- EPA
- Executive Orders
- EO 14151 “Ending Radical and Wasteful Government DEI Programs and Preferencing” (1/20/25; 1/29/25 Federal Register)
- EO 14173 “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (1/21/25; 1/31/25 Federal Register)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com