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Environment & Energy Report

EPA Is Shut Down, But Courthouse Doors Still Open

Dec. 31, 2018, 8:22 PM

Federal courts are open even though the EPA’s doors are closed, but judges are already putting the brakes on a raft of cases as the government shutdown drags on.

The Environmental Protection Agency was able to stay in business an extra week thanks to unspent funds, but now a prolonged shutdown would run up against a host of pending deadlines for the agency to act.

The agency has numerous court-ordered deadlines looming in the coming weeks, and it’s unclear how much patience the judges who set them will have. A lengthy shutdown could also trip up the EPA’s ability to meet tight new deadlines under the updated toxic substances law.

“The big question right now is we don’t know the duration of this shutdown,” Thomas A. Lorenzen, a partner with Crowell & Moring LLP’s Washington office who previously defended EPA regulations at the Justice Department, told Bloomberg Environment.

The partial government shutdown began Dec. 22 after Congress failed to reach an agreement with President Donald Trump to extend funding for numerous agencies, including the EPA and the Department of the Interior. Trump said he is unwilling to sign any spending bill that doesn’t include money for a wall along the U.S.-Mexico border.

First Stop: Supreme Court

The first deadline will be before the nation’s top court. The agency will likely have to help the solicitor general file a brief by Jan. 4 to the U.S. Supreme Court in a potentially landmark case over how to regulate groundwater pollution.

So far, neither the EPA nor the solicitor general’s office, which is also shut down, have asked the court for an extension.

If the budget impasse continues, it could run up against a Jan. 28 deadline for the EPA to file briefs with the Supreme Court defending its authority to regulate the water pollution impacts of construction projects.

Courts Hit Pause

Most judges, however, acknowledge the reality of the government shutdown, according to Bruce Buckheit, a former litigator at the Justice Department and EPA who has lived through prior government shutdowns. He said the EPA tends to get a fair amount of lenience in these types of situations from most judges—though not all.

“It’s pretty rare that you get [a judge] who flips out and hates everyone,” Buckheit told Bloomberg Environment. But “the judicial system on the whole is pretty sensible for deadlines.”

In some of the pending lawsuits against the EPA, judges have already agreed to put cases on ice until normal government functions resume. The U.S. District Court for the Northern District of California has temporarily delayed all activity in a case asking the agency to ban fluoride in drinking water.

“Defendants shall inform the Court when Congress has appropriated funds. At that point, all deadlines for the parties shall be extended commensurate with the duration of the lapse in appropriations,” Judge Edward M. Chen ordered Dec. 29.

The same thing happened in a lawsuit over an accidental spill the agency caused in 2015 at Colorado’s Gold King Mine.

Additionally, the shutdown is depriving the EPA and Justice Department of valuable preparation time for upcoming oral arguments. There are two arguments on the EPA’s calendar before federal appeals courts that are coming up in late January and early February.

Buckheit said, even if the shutdown is resolved before then, the appeals courts will probably agree to postpone the arguments if the Justice Department’s attorneys say they weren’t able to properly prepare.

Tight Chemicals Deadlines Get Tighter

The shutdown also will impede the EPA’s efforts to meet already tight deadlines under the 2016 amendments to the Toxic Substances Control Act.

The EPA was expected to begin releasing in late December or early January the names of at least 40 chemicals to evaluate. The law requires the agency to sort through all 40 in 2019 and decide by March 31, 2019, at the latest which 20 will be teed up for close scrutiny—possibly leading to regulatory controls—and which 20 can be set aside for now.

Chemical, industrial equipment, paper, toy, tire, and many other manufacturers have asked the agency to let them know as soon as possible which chemicals are on that list. They’d like as much time as possible to provide the EPA data that could tip its conclusion toward deciding the compound they need doesn’t need a spotlight.

The EPA also was expected to release by the end of December more draft risk assessments for the 10 chemicals such as asbestos it is closely reviewing.

Delaying release of these risk assessments doesn’t mean the agency gets any more time to finish them. The toxics law directs the agency to get finished ones out the door by Dec. 22, 2019. While the law allows an extension until June 22, 2020, the statute requires the agency to be working on so many tasks in early 2020 that the agency says it plans to meet the 2019 deadline.

—With assistance from Amena H. Saiyid, Sylvia Carignan, and Pat Rizzuto.

To contact the reporter on this story: David Schultz in Washington at dschultz@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Andrew Childers at achilders@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com