The Nickel Report

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.