Washington, D.C. — House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) and Environment, Manufacturing, & Critical Materials Subcommittee Chair Bill Johnson (R-OH) sent a letter to Environmental Protection Agency (EPA) Michael Regan urging the agency to end it’s effort to circumvent Congress in order to advance the Biden administration’s rush-to-green agenda.  

KEY QUOTE:  

“Regulating and responding to climate change risks is a policy question for Congress to legislate and the enforcement office at the EPA should not be reimagined to achieve an Administration’s political objectives. We are concerned about far-reaching effects of the aggressive enforcement set forth in this memorandum.” 

BACKGROUND: 

• On September 28, 2023, the EPA released a memorandum on the EPA’s Climate Enforcement and Compliance Strategy. 
• The memorandum directs all the EPA’s enforcement and compliance offices to prioritize and address the mitigation of climate change “in every matter within their jurisdiction.” 
• The memorandum appears to direct the use of EPA enforcement authorities in a way that expands them to target disfavored industries or businesses.   
• Congress did not authorize the EPA to sanction economic sectors for merely operating, nor does it suggest the EPA use the law to remedy matters not stated in the statute. 

Given this, the members asked Secretary Regan to respond to provide the following information by January 29, 2024: 

1. Please identify all of the statutory authorities the EPA is relying on to implement each of the directives in the OECA memorandum. Which environmental statutes authorize the EPA to mitigate for past harms? In cases involving violations of statutes that do not provide such authority, on what authority will the EPA rely to seek mitigation? What is the EPA’s authority to include a Supplemental Environmental Project (SEP) in a settlement? 
2. The OECA memorandum states that “…EPA’s enforcement and compliance program will prioritize enforcement actions to reduce emissions of other GHGs by addressing illegal activity related to carbon dioxide, nitrous oxide, and volatile organic compound (VOC) emissions.” By targeting and prioritizing these enforcement issues, is the EPA considering these compliance violations the most significant threat to public health? Which environmental violations is the EPA de-prioritizing? Is it now the EPA’s policy that enforcement efforts related to climate change, as outlined in the memorandum, should take priority over enforcement actions focused on federal statutory violations, such as those related to hazardous waste cleanups or cost-effective water pollution abatement efforts? 
3. The OECA memorandum directs enforcement staff to consider different types of climate mitigation remedies throughout all case resolution efforts, including through SEPs in civil cases. The EPA’s SEP policy, updated in 2015, establishes the legal guidelines for utilizing SEPs in enforcement settlements; including that all SEPs are required to have a significant “nexus.” The policy defines “nexus” as a significant relationship between the violation and the proposed project. The EPA’s prosecutorial discretion to settle enforcement actions does not extend to the inclusion of SEPs that do not have a nexus in the violations being resolved. The memorandum appears to equate mitigation and SEPs. Does the EPA now take the position that it is appropriate to use a SEP for mitigation? Please state, as it relates to the memorandum, how the EPA defines what constitutes a significant nexus under EPA’s SEP policy. Will the Department of Justice adhere to the same policies when enforcing on behalf of the EPA? As it relates to the use of a SEP, how will the EPA ensure “climate mitigation remedies” have a significant nexus to the underlying statutory violation? If there is no significant nexus, will EPA officials rely on the authority of a court to evade legal constraints on the EPA’s own settlement authority? Please provide examples of completed enforcement actions where the EPA has used mitigation remedies through SEPs in settlement cases. 

CLICK HERE to read the full letter.