COULD ANADROMOUS FISH BECOME VICTIMS OF COVID-19?

COVID-19 only affects mammals.  

Depending on what version of its origin story we’re told, it began in bats, or maybe in pangolins.  There is a very real chance that it may have resulted from two different viruses that arose, separately, in both of those animals, that subsequently combined and went on to jump species and infect Homo sapiens, which has managed to spread the infection planet-wide.

There are a lot of other things that are unknown, or at least uncertain, about the virus, but one thing seems clear:  Fish are immune from infection.  It’s one of the advantages of not having lungs.

But that doesn’t mean that fish won't become victims of COVID-19.  This is the time of year when rivers run high, and anadromous fish, such as striped bass, shad and salmon, return from the sea to their upstream spawning grounds.  

And most of the rivers they spawn in are far from pristine.

Over the past 400 years or so, since the first European settlers put down roots in what would, in time, become the United States, our coastal rivers have suffered from multiple insults.  They have been dammed, and their shores denuded of timber.  They have become dumping grounds for sewage and industrial waste.  They have been dredged, their shores have been hardened, and their marshes drained.  Even up in their most remote headwaters, farms, golf courses, and other industries have been allowed to wash pesticides, excess fertilizer, manure and other pollutants into local waterways, through the spawning grounds, and into coastal estuaries.  

The health of the rivers declined.

In 1972, the United States finally found the courage to stand up to industry and adopt the Clean Water Act.  It began to reverse the carnage of centuries, and bring life back to some of the nation’s most damaged waterways.  After nearly fifty years, there was still a lot of work to be done, but a spawning population of striped bass was again thriving in the lower reaches of the once-hypoxic Delaware River, PCB-laden sediments were removed from the Hudson River and, after long litigation, regulations set a “total daily maximum load” for pollutants in rivers feeding into the Chesapeake Bay. 

Real progress had been made, but then COVID-19 intervened, and interrupted the patterns of human life, work and travel across the nation and the world.  Many people fell ill, and left their workplaces; far more stayed at home either voluntarily, or as those workplaces were shut down. 

Supposedly because of such illness and other COVID-related absences, on March 26, the United States Environmental Protection Agency announced that it would be exercising “enforcement discretion” for entities’ failure to meet various environmental compliance obligations.

Intentional, criminal violations of environmental rules will not be excused, and the policy does not apply to Superfund sites or certain other enforcement instruments.  However, in other instances, the EPA has announced that

“The consequences of the pandemic may constrain the ability of regulated entities to perform routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification.

“…In general, the EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.”

On its face, the temporary policy doesn’t seem unreasonable.  There is, after all, a public health crisis going on, and as the virus continues to spread, it is very possible that companies won’t have sufficient staff on hand to conduct all of the necessary and routine environmental monitoring that it would perform during normal times.

But is staffing really the key issue?

Whether pollutants are released into the environment intentionally, negligently or because they slip past an inadequate monitoring regime, they do the same damage.  And in the spring, as anadromous fish run up rivers to their spawning ground, they are as badly impacted by an inadvertent pollution release as they are by intentional harmful discharges.  A shad, river herring or striped bass running past the extensive industrial chemical complexes on the Delaware River won’t survive a COVID-related toxic discharge any better than it would a discharge motivated purely by convenience and profit.

And, in the real world, there might not be any difference between the two.

The EPA’s temporary policy doesn’t, on its face, automatically let polluting companies off the hook.  It requires, among other things, that a company violating environmental standards

“Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance.”

But that still leaves two problems outstanding:  The EPA has now established at least a temporary standard of not seeking penalties for noncompliance, which will undoubtedly remove some of industry’s incentive for doing things right.  And in the absence of required monitoring, sampling, laboratory analysis, etc., it’s not clear how the EPA or the relevant facility will even know that a pollution event occurred, and thus will be less able to both abate the event and report its occurrence.  

We may only learn of such events when hordes of fish begin floating and drifting downstream.

As John Walke, speaking for the Natural Resources Defense Council observed,

“There’s a direct link from monitoring to excessive pollution that may occur and may never be detected or reported to the public or regulators because of the direct grant of amnesty by the Trump EPA.”

An example provided in the March 28 edition of The Hill expanded on that problem.

“Critics say spikes in pollution from routine industrial operations will go unnoticed if no one is monitoring them, exceeding pollution levels allowed under the Clean Air Act, Clean Water Act and other laws.

“Eric Schaeffer, executive director of the EPA who previously served as director in the agency’s Office of Civil Enforcement, used benzene as an example.

“The cancer-causing substance can be leaked as oil refineries turn crude into fuel.  They’re often required to keep monitoring equipment in order to ensure high levels of benzine don’t leak into nearby neighborhoods.

“Schaeffer says the data the EPA normally collects shows companies can have spikes of as much as 10 times the legal limit.

“’If you don’t monitor, you don’t see the benzene, and then you have no obligation to do anything about it.  You don’t have the data to know if you need to act,’ he said.”

Comments like Schaeffer’s provide additional cause for concern when one learns that, as The Hill reported on March 26,

“In a 10-page letter to the EPA earlier this week, the American Petroleum Institute (API) asked for a suspension of the rules that require repairing leaky equipment as well as monitoring to make sure pollution doesn’t leak into nearby water.”

The American Petroleum Industry is hardly a model for environmental stewardship.  It represents an industry known for repeatedly causing very significant environmental harm through cost-cutting and negligent operations, as exemplified by the Exxon Valdez and Deepwater Horizon oil spills.  If the EPA's motivation for adopting the temporary policy was in any way connected to the petroleum industry's entreaties, the policy itself must be questioned.

And as The Hill also noted, in addition to creating threats to human health,

“The suspension of rules could also be damaging to waterways, which many plants are allowed to directly discharge chemicals into, so long as they ensure their effluent is sufficiently free of toxins.

“’If you don’t really have information about the toxicity of your discharges, you just go about your merry way without knowing if you’re discharging something acutely hazardous,’ Schaeffer said.”

Given that the nation is facing a crisis situation, where business—and, arguably, government regulation of business—can’t go on as usual, yet also given that, as the NRDC’s Walke notes,

“There are always bad actors in the industrial economy when it comes to environmental safeguards,”

did the EPA strike a reasonable balance between such competing concerns when adopting the temporary policy?

Probably not.

In the first instance, it comes down to a matter of corporate priorities.  Companies willing and able to staff their production lines should be just as willing to staff positions needed to maintain environmental safeguards.  Yes, some might get sick, or be otherwise absent, but that doesn’t prevent the companies for filling the slots with other personnel—even if that means paying overtime—to get the job done.  As Mr. Schaeffer noted,

“It is not clear why refineries, chemical plants, and other facilities that continue to operate and keep their employees on the production line will no longer have the staff or time they need to comply with environmental laws.”

Then, it also comes down to a matter of national priorities.  If a company cannot assure that it can run its production lines without causing harm to air and/or water, should the next step not be to take a long look at what such company is producing, and whether such products are essential to combatting the COVID-19 pandemic, or to otherwise maintaining the health and security of United States citizens?  

If production found to be non-essential cannot be maintained without an increased risk of pollution, shouldn’t such production be halted unless or until adequate monitoring and testing can be resumed?

Finally, the EPA probably made a mistake in promising a broad amnesty for non-compliant levels of monitoring, testing, etc.  Doing so can only incentivize corporate bean-counters to devise ways to avoid the expense of environmental compliance, and then crafting arguments that blame non-compliance on COVID-19.  

A better alternative would have left all compliance requirements, including penalties and fines, intact, while providing non-compliant companies the right to prove, by a preponderance of the evidence, that it made an effort to comply and would have done so had COVID-19 not made compliance impossible.

Such an approach would have left the supposed intent of the EPA’s temporary policy intact—companies would still be relieved of otherwise applicable penalties if they could prove that compliance failures were due solely to COVID-19—but any temptation to use COVID-19 as an excuse for lax compliance procedures would be deterred by imposing full penalties on any entity that could not prove that the virus was the sole cause of compliance failures.

Thus, the balance between protecting the public interest and accommodating legitimate industry concerns could have been struck, in a way that would better protect U.S. waterways, and U.S. residents, from harm.

Because COVID-19 will, in time, go away.  Eventually, most of us will survive, and when the virus is gone, we will want to get back out in the world and fully enjoy what it offers.

When that time comes, we want to be greeted by healthy rivers, estuaries and seas, and healthy fish populations that, perhaps, will even be a bit healthier than they were before we were compelled to stay in and near our homes.

The last thing we will need, in that time of healing, will be waters that run polluted and emptied of fish, so that corporate profits could thrive.