As the partial federal government shutdown over President Donald Trump's proposed U.S.-Mexico border wall stretches on, the rulemaking process at the U.S. Environmental Protection Agency has ground to a halt. And that could imperil some of the Trump administration's signature energy-related rulemakings, according to former top EPA officials with expertise on the policy process.
The EPA used carryover funds to stay open longer than most other agencies affected by the federal government shutdown, but the agency is now closed after its funding lapsed at midnight on Dec. 28, 2018. As a result, EPA staff tasked with helping the agency shepherd major rulemakings across the finish line — including proposals to ease restrictions on fossil fuel-fired power plants and freeze national vehicle emissions standards — are sidelined.
With congressional Democrats and the White House stuck at an impasse over wall funding, a prolonged shutdown will give the EPA less runway to finalize some of the Trump administration's top energy rules and defend them against court challenges before the next presidential election. If a Democrat wins in 2020, the lengthy process of pausing court cases to replace regulations tied up in litigation — similar to the slow death of the Clean Power Plan and a slew of other Obama-era regulations — could start all over again.
The shutdown "is absolutely slowing down and in some cases bringing to a halt the deregulatory activity of the agencies, including the EPA," said Neil Bradley, executive vice president and chief policy officer at the U.S. Chamber of Commerce at a press briefing on Jan. 10. "Administrations only have so many days. You can’t get days back."
Wading through comments
One of the most crucial steps in the EPA's rulemaking process is to gather and respond to public comments, said Bob Perciasepe, who served as former EPA deputy administrator from 2009 to 2014. It is generally the career staff's job to determine whether comments support a proposed rule and whether the EPA can build a case for a proposed regulation based on the comments it receives, he said.
The EPA's proposed replacement for the Obama-era Clean Power Plan, for example, garnered more than 271,000 comments. And the agency's proposal to freeze Obama-era vehicle tailpipe standards for cars and light-duty trucks received more than 610,000 comments, including a scathing 415-page critique from California in response to a proposal to revoke the state's waiver to set its own tougher standards. "These are the things that the staff have to be working on right now so that when they finalize the rules, there's enough evidence and technical support" for the regulations, Perciasepe said in an interview.
After unveiling both proposals last year, the EPA said in its fall unified agenda it expects to finalize the rules sometime in March 2019. But the partial shutdown could push that timeline out of reach. "Those are two big marquee rulemakings that they're doing, and this will delay them," Perciasepe said. Shutdowns also hurt employee morale, which can prompt talented workers to leave and undermine the agency's long-term productivity, Perciasepe said.
The EPA did not respond to a request for comment on Jan. 9.
In addition to going through a public comment process, EPA rules are also subjected to legal review before they are finalized, noted Stan Meiburg, a 22-year agency veteran who served as EPA Acting Deputy Administrator from 2014 to 2017. "Clearly, if they have deadlines ... it's going to be harder to meet them and the quality of the resulting product will be weaker, which will render it more vulnerable to litigation on the grounds that the rules are arbitrary and capricious," he said.
While the Obama administration suffered legal setbacks on the Clean Power Plan and the Mercury and Air Toxics Standards, it was successful in other Clean Air Act rulemakings because it "went to great lengths to develop a robust and well-documented record" to support them, Meiburg said. "If the record is incomplete or half-baked … because it had to be rushed at the last minute, that's going to impair the ability of the agencies to prevail" in court," he said.
But Misha Tseytlin, Wisconsin's former solicitor general who represented the state in Clean Air Act litigation against the EPA, said he wouldn't presume the partial shutdown will impact the EPA's ability to defend its regulations. "I would think that to the extent staff is not working for any reason, it will just take longer to complete their jobs," he said.
Nevertheless, environmental groups have vowed to challenge the Trump administration's proposed regulatory rollbacks as soon as they are finalized, and Perciasepe said the shutdown has given the EPA a "very tight" window to conclude the impending litigation before the November 2020 presidential election. "It's not impossible, but the longer this goes on the more difficult that becomes," he said.