Last week, Susan Bodine, EPA Assistant Administrator for
Enforcement and Compliance Assurance, issued a memorandum stating that EPA would exercise its
enforcement discretion and not take enforcement action against
entities that cannot comply with obligations to EPA due to issues
arising from COVID-19. At a certain level, this is understandable.
The world has been turned upside down and no one quite knows what
is feasible in the current circumstances and what it not.
The issue is really just a classic economic problem – we
live in a world of imperfect information. If EPA had perfect
information, it would know which are the true force majeure events
and which are bogus. In a normal imperfect world, regulated
entities have to demonstrate the existence of a force majeure event
– and the standard of proof is rather high.
