Environmental Law

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EPA provides more detailed guidance on aftermarket safe zones while continuing to drive forward enforcement initiatives.

By Arthur F. Foerster

In 2019, the US Environmental Protection Agency (EPA) released its “National Compliance Initiatives” (NCIs) for years 2020-2023. EPA sets NCIs for what the agency believes are “the most serious environmental violations.”[1] One of those NCIs is to eradicate aftermarket defeat devices on emissions control systems for vehicles and engines. In the last few years, EPA has dedicated increased enforcement resources to pursue those who violate the defeat device and tampering prohibitions found in Section 203(a)(3) of the Clean Air Act (CAA).[2] Even with the pandemic, EPA has resolved more than twenty aftermarket “defeat device” and tampering enforcement cases.[3] EPA personnel recently released a report that estimates emissions controls have been removed from more than 550,000 diesel pickup trucks in the last decade, resulting in more than a half-million excess tons of oxides of nitrogen (NOx).[4] EPA’s enforcement efforts are expected to continue.

Consultation document proposes replacing the European Commission with a new environmental watchdog, among other recommendations.

By Paul A. Davies and Michael D. Green

The UK government has announced a consultation in relation to the proposed new Environmental Principles and Governance Bill, which aims to ensure maintained and strengthened environmental protection following the UK’s exit from the EU. While this particular consultation, which was announced on 10 May, relates to England, the government has indicated that it will “… work closely with devolved administrations on common frameworks”. The government’s intention is to “… ensure we leave our environment in a better state than we inherited it”. The planned publication date for the Bill is this autumn.

The consultation document includes three parts:

  • Part 1 relates to the effect of environmental principles enshrined in both international and EU law, and how England’s statutory framework could incorporate these principles.
  • Part 2 addresses the idea of establishing a new watchdog to hold the government to account in relation to environmental protection.
  • Part 3 explores what the exact function and role of the new watchdog would be, as well as the responsibilities of government and Parliament in developing policy and law, along with the Environment Agency’s and Natural England’s role in implementing such policies.

By Paul Davies and Andrew Westgate

The Supreme People’s Court (SPC), China’s highest judicial body, issued a judicial interpretation on December 26, 2016 which defines 18 types of environmental crimes as “serious environmental pollution” and identifies 13 types of “serious consequences” under China’s criminal law, subject to increased penalties. The report is available here (in Chinese only). Notably, under the SPC’s interpretation, tampering with or falsifying results from environmental monitoring equipment, which previously would have been subject to civil penalties, is now deemed to be a serious crime.  According to Yan Maokun, director of the Supreme People’s Court’s research office, “it’s the first time that falsifying monitoring data is considered a crime, which could lead to more effective deterrence and punishment of such violations.” The interpretations, which took effect on January 1, 2017, appear to confirm predictions that the government will move to strengthen enforcement of environmental law. “The revised Environmental Protection Law allows us to give managers administrative detention if they falsify data, but the new interpretations can do more to deter polluters,” stated Bie Tao, the Deputy Director of the Ministry of Environmental Protection’s Policy and Law Department.