CLIMATEWIRE | EPA was already facing a mad dash to complete climate rules in the next six months. A government shutdown could make that harder.
The agency has run behind schedule to propose and finalize regulations throughout the Biden administration, and the government's looming closure threatens to make it harder for the agency to complete work on key pieces of the president’s climate agenda before they may become vulnerable to Republican-led reversals.
The administration’s regulatory agenda in June projected that the Office of Air and Radiation would clear a slate of methane-related actions over the summer, including a final oil and gas rule and a proposed fee on excess emissions envisioned in last year’s climate law. Neither has begun White House review.
EPA also expected to finish work on rules for passenger vehicle and heavy-duty truck emissions before the end of this year. While the truck rule is expected to hit that mark, EPA has said the clean car rule won't be ready until the spring. And the agency's marquee rule for power plant carbon emissions is projected to be final in April.
If EPA sticks to its current schedule, that should prevent Republicans from using the Congressional Review Act to undo those rules in one fell blow if they win control of both congressional chambers and the White House in next year's elections. But experts say a government shutdown could delay the rulemaking process. The CRA sets a strict window based on the congressional calendar allowing lawmakers to pass — and the president to sign — a resolution to veto a newly minted rule. It's not clear when that window will close next year, but the later the rule is final the more it is at risk.
If Congress fails to pass a funding bill by Saturday at midnight, EPA has said it has cash on hand to stay open through Oct. 7. Deputy Administrator Janet McCabe said in an email to staff first reported by POLITICO that if Congress still hadn’t passed government funding legislation by next Friday, “most EPA employees” will be furloughed.
And that could cost the agency more productivity than the length of the shutdown would suggest, say former EPA officials.
“If the shutdown is one week, it's more than one week that they're going to lose on the rulemaking process,” said Bob Perciasepe, a former EPA deputy administrator who has experienced three government shutdowns. “It's already eroding their effectiveness, I'm guessing, right now."
The looming shutdown also raises the prospects of other interruptions that could grind agency work to a halt. Online portals that are used to submit grant applications and to comment on EPA actions might close, requiring extensions. And outside contractors that EPA relies on for some of its economic modeling and analysis related to rulemakings could take other work.
Existing laws do allow EPA to carry on with some activities if appropriations lapse. The agency's 2-year-old contingency plan outlines those exceptions — including allowing work to continue if it's related to court-ordered deadlines, securing EPA facilities or protecting “life and property.” The plan points to the example of responding to the release of hazardous substances when it endangers public health.
Congress enacted climate and infrastructure legislation over the last two years that provides funding outside of the regular appropriations process — and that work can continue during a government shutdown. But money from the Inflation Reduction Act probably can’t be used to continue EPA regulatory work, experts say.
Stan Meiburg, who served at EPA for nearly 40 years including a stint as acting deputy administrator, said rules that are already under review at the White House Office of Management and Budget likely face the thorniest shutdown-related delays.
“With major rules in particular there'd have been a lot of discussion going on between OMB and EPA before they send the rule over there, and they have it pretty well laid out as to what their schedule is and what they were expecting to do,” he said. “If you can't get it out of OMB, though, you start to get day-to-day extensions of where and when the actual release is going to be.”
The EPA air office has a handful of rules currently under White House review, including one that would guide state plans to implement the power plant carbon rule and the oil and gas methane rule. The methane rule is expected to go to OMB any day, observers say.
EPA released draft methane rules during the last two global climate summits, and the final version might be unveiled at the talks that start in Dubai, United Arab Emirates, in November. But interagency review typically takes at least two months, so a government shutdown of any length would make that timing unlikely.
Meiburg said a shutdown that causes short-term delays for some rules would be unlikely to create a long-term backup that could affect the clean car and power plant rules expected in the spring.
"Usually the agency can do a certain amount of scrambling around to just kind of make up some time,” he said. OMB might also work to complete reviews more quickly.
Reporter Kevin Bogardus contributed.
Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2023. E&E News provides essential news for energy and environment professionals.