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The Insider

Coronavirus Sparks Delay, Uncertainty Across Environment Policymaking

The widening coronavirus pandemic is sparking numerous delays and significant uncertainty across environmental policymaking, including possible slowdowns to Trump administration deregulatory policies and key California air rules.

Requests are already pouring in to EPA to delay regulatory comment periods and extend deadlines in consent decrees, while courts are also postponing briefing deadlines and oral argument -- all due to the massive social and economic disruption caused by the virus.

The widening fallout is now a major wild card for EPA’s deregulatory agenda, which was already packed with high-profile rules and facing bandwidth constraints:

Coronavirus Adds New Wild Card To Crowded EPA Deregulatory Plans
The coronavirus pandemic is prompting fresh questions about EPA’s ability to advance the Trump administration’s sweeping deregulatory agenda, at a time when the agency was already scrambling to complete a host of rollbacks to prevent the policies from being scrapped if Democrats sweep the November elections.

Coronavirus “is definitely not going to speed things up. How much it will slow it” is the key question, said one industry source, who expects the agency will “obviously be slower and less effective. Add a month or two onto some of those rules’ [timelines], that is possible.”

EPA announced March 16 that staff could voluntarily telework across the country to continue operations while trying to stem the spread of the virus. “Nothing is being slowed down at this point, we are able to telework,” one agency source says.

But Trump officials had already been scrambling to complete as many final rules as possible before the end of May -- an approximate deadline for preventing Democrats, should they sweep the elections, from using the Congressional Review Act (CRA) to repeal rules issued within the prior 60 “legislative days.”

Out West, the virus might also portend delays to several new air and climate rules being crafted in California:

Coronavirus Raises Questions About Potential Delays For Key CARB Rules
The coronavirus pandemic is raising questions about whether the California air board must delay steps to formally propose, advance or finalize key regulations, with agency officials to date offering only general and inconclusive comments about how the public health crisis will affect their agendas.

Air regulators have already canceled their March 26 meeting, delaying adoption of new requirements for biodiesel blends and certain additives.

A spokesman for the California Air Resources Board (CARB) declined to address how the virus would affect other key rules. “If there are changes that affect the public’s ability to provide input, CARB will deal with them in the most transparent and timely way possible.”

However, several key rules have been scheduled for action in the coming weeks -- including strict air standards for heavy trucks, a sales mandate for zero-emission trucks, landmark greenhouse gas limits for ride-hailing companies, and pollution cuts for shippers and ports.

Back at EPA, officials are facing multiple requests for regulatory and consent decree deadline extensions due to the virus’ impact:

EPA Facing Calls To Extend Consent Decree, Rule Deadlines Due To Virus

EPA is facing a growing number of requests to a extend a series of rulemaking and consent decree deadlines due to the ongoing effect of the coronavirus pandemic that is halting activity across the country, highlighting the potential for delays to a host of deregulatory actions even as industry eyes waiving certain environmental requirements.

One industry lawyer says their client issued a force majeure notice to EPA, asking it to exercise provisions in a consent decree to extend deadlines due to unforeseen circumstances. There are indications that other companies are mulling the option, though it is unclear how the agency would respond to such requests.

Environmentalists and others are also citing the coronavirus to call for longer public comment periods on proposed rules, while slamming a recent advisory from the law firm Arnold & Porter outlining potential statutory waivers of environmental requirements during emergencies.

Rena Steinzor of the Center for Progressive Reform charges the advisory is “extremely generic and wide open” and expresses skepticism that the current pandemic translates to a true emergency in most situations. She also argues the alert is an attempt to “get new business at the expense of the environment.”

In the courts, multiple judges are granting filing deadline extensions in several environment-related cases, and the U.S. Court of Appeals for the District of Columbia Circuit has postponed all in-person oral arguments scheduled through May 15:

D.C. Circuit Postpones All In-Person Oral Arguments
The U.S. Court of Appeals for the District of Columbia Circuit has issued a standing order postponing all in-person oral arguments that had been scheduled through May 15 due to the coronavirus.

That decision affects several EPA cases, including a Clean Water Act impaired waters listing suit, a challenge to the agency’s 2019 renewable fuel standard rule and a suit over its rejection of New York’s petition seeking air pollution cuts in upwind states.

The ongoing impact of the coronavirus pandemic is also creating major disruptions to the waste and recycling sectors:

Coronavirus Pandemic Spurs Uncertainty For Waste Disposal, Recycling
Waste industry officials say the coronavirus pandemic is creating uncertainty for U.S. disposal and recycling, as business closures and a general economic slowdown are likely to cut the amount of waste created across the country, but limits on international trade will force domestic facilities to process a larger portion of the remaining waste.

“We are likely going to see kind of lumpy supply-chain impacts. . . . I think it’s going to have some weird impacts on the U.S. and global economy,” Jason Schenker, president of Prestige Economics and chairman of the Futurist Institute, a market-analysis firm, during a recent coronavirus webinar hosted by the Institute of Scrap Recycling Industries (ISRI).

Specifically, ISRI Chief Economist Joe Pickard said during the webinar that China’s cuts to imports of scrap metal and other waste products are likely to depress the markets for those items, leaving them to be disposed instead of recycled. “If [companies] can’t move that ingot into China then they’re going to cut back on their scrap [purchases],” he said.