United States: U.S. EPA Announces New Climate-Focused Enforcement Strategy

On September 28, 2023, the United States Environmental Protection Agency ("EPA") Office of Enforcement and Compliance Assurance ("OECA") released a memorandum announcing its new Climate Enforcement and Compliance Strategy. The new strategy calls for EPA to focus enforcement on increasing oversight of oil and gas facilities, landfills, and the production and consumption of hydrofluorocarbons.

This strategy is in response to President Biden's 2021 Executive Order 14008, calling on federal agencies to implement changes to tackle the climate crisis. To meet this directive, the OECA Strategy Memo lays out the following three enforcement and compliance requirements: "(1) prioritize enforcement and compliance actions to mitigate climate change; (2) include climate adaptation and resilience in case conclusions whenever appropriate; and (3) provide technical assistance to achieve climate-related solutions and build climate change capacity among EPA staff and our state and local partners." These requirements apply across criminal and civil enforcement actions by EPA, whether at federal or private facilities, and whether related to cleanup activities or other environmental regulatory programs.

In prioritizing enforcement activities that will reduce greenhouse gases in an effort to combat climate change, EPA will focus on responding to allegations addressing greenhouse gases and volatile organic compound emissions, including gas flaring, storage tank emissions, wastewater treatment systems, incineration/combustion operations, Greenhouse Gas Reporting Rule compliance, and Renewable Fuel Standards compliance. Regulated entities could experience an increase in enforcement actions in these areas and should review their operations to ensure compliance with these prioritized activities.

This OECA memorandum also directs EPA to incorporate climate resilience into case resolution within existing enforcement and compliance programs. Under this directive, EPA will consider climate risks at facilities under other regulatory programs, such as the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), Resource Conservation and Recovery Act ("RCRA"), and Clean Water Act. Enforcement staff are also instructed to consider future results of climate change, such as extreme weather events, in enforcing these statutes. Overall, this could increase the scope and amount of enforcement activity under other existing statutes not directly related to climate change.

To support these new goals, OECA intends to provide technical assistance to EPA staff as well as state and local partners. OECA aims to create tools to help incorporate risk into infrastructure planning, such as the Climate Resilience Evaluation and Awareness Tool. EPA also intends to expand resources for its staff to address climate change within their work, including creating an "electronic repository of climate mitigation, adaptation, and resilience approaches to serve as examples for consideration in future activities." The guidance also directs EPA staff to consider climate risks during inspections under the Clean Air Act, RCRA, and CERCLA. These changes may increase scrutiny of facilities located in coastal areas or other areas thought to be at risk due to climate change.

The new directives build off of EPA's August 2023 announcement, creating the first-ever national enforcement and compliance initiative on climate change, targeting methane emissions from oil, gas, and landfill facilities and the importation of hydrofluorocarbons. Together, these actions demonstrate increased EPA scrutiny of climate-related activities and may signal an increase in enforcement actions for alleged breaches of current and future climate-related rules, including those related to greenhouse gas reporting. EPA is not only instructing its staff to place more focus and emphasis on enforcement actions targeting reductions of greenhouse gas emissions, but also increasing resources to support this effort. Together, this will likely result in more scrutiny and a higher rate of enforcement actions against regulated industry.