Emergency Waiver of EPA Regulations: Authorities and Legislative Proposals in the Aftermath of Hurricane Katrina

Publication Date: September 2005

Publisher: Library of Congress. Congressional Research Service

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Research Area: Environment

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Abstract:

As state, local, and federal officials respond to Hurricane Katrina, there has been discussion regarding whether environmental regulations might slow or impede response efforts, and whether Congress needs to provide authority to waive environmental regulations in order to speed response to and recovery from the hurricane and subsequent flooding.

Responding to these concerns, on September 16, Senator James Inhofe, the Chairman of the Senate Environment and Public Works Committee, and Senator David Vitter of Louisiana introduced S. 1711, to allow the Environmental Protection Agency (EPA) to waive or modify the application of any requirement that is contained in any law under EPA's administrative jurisdiction, if it is necessary to respond in a timely and effective manner "to a situation or damage relating to Hurricane Katrina." On September 22, Senator Vitter and Senator Mary Landrieu of Louisiana introduced S. 1765 and S. 1766, identical bills to provide disaster relief and recovery incentives for Louisiana. These bills would allow the President to issue emergency permits under which any project carried out in response to the disaster would be considered to be in compliance with any applicable Federal law. A fouth bill, Representative John Shadegg's H.R. 3836, would require expedited issuance of permits for Katrina-related refinery reconstruction.

This report reviews some of the environmental laws that could affect response and recovery actions, discusses existing waiver authority, and identifies issues raised by proposals to grant new waiver authority. The focus of the report is on regulatory programs administered by EPA, including the Clean Water Act, Superfund, and the Clean Air Act. In the short term, in the immediate aftermath of Hurricane Katrina, environmental regulations do not appear to have posed an obstacle to local, state, federal, or private response efforts, in part because existing waiver or flexibility provisions were used in certain cases.

For the longer term, the report raises questions concerning the waiver authority that new legislation might grant, including what its scope (both geographic and regulatory) would be, how facilities granted waivers would be regulated after the expiration of the waiver period, the effect of such legislation on state and local requirements, and whether substantive as well as procedural requirements should be waived, if waivers are to be granted.

Questions have also been raised regarding the requirements of the National Environmental Policy Act (NEPA), a non-regulatory statute that, with exceptions, requires written analyses of environmental impacts before major federal actions are undertaken. NEPA questions are addressed in a separate CRS Report, NEPA and Hurricane Response, Recovery, and Rebuilding Efforts, RL33104.

This report will be updated as developments warrant.