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Congress could hinder but not stymie Trump's plans for EPA

Congress is guaranteed to push back against President Donald Trump's proposals to sharply cut funding for the federal agencies charged with addressing energy issues and their energy programs. Nevertheless, Trump has other ways to accomplish his agenda, including trimming executive branch positions through worker attrition and redirecting available staff to work on his priorities.

For fiscal-year 2018, the president called for chopping the U.S. Environmental Protection Agency's budget by roughly one-third and eliminating some key state grant programs in a bid to cut nonmilitary discretionary spending. Congress resisted much of Trump's calls to pare down federal agencies in a recently enacted fiscal 2017 spending bill, but a much bigger fight is probably in store over funding for the upcoming fiscal year.

The president on May 2 said the U.S. government needs a "good shutdown" if Congress cannot advance his priorities in a spending bill for fiscal-year 2018, implying he may refuse to sign any legislation that does not reflect his priorities. He has also called for changing Senate procedural rules to eliminate filibusters, a move that would allow spending bills and other legislation to pass with only a simple majority of 51 votes.

But eliminating filibusters or shutting down the federal government are both drastic choices with heavy political consequences. Trump may ultimately have to accept Congress' demands for less extreme cuts, but the administration can still find ways to shrink the EPA, the U.S. Department of Energy and other federal agencies.

Congress gives little wiggle room

Congress controls the federal government's purse strings, and those strings are drawn tightly. Under a normal appropriations process, lawmakers introduce appropriations bills in spring or summer for the following fiscal year that begins Oct. 1. Those bills determine total spending levels for agencies, including for specific programs and regulatory efforts.

If Congress cannot pass all twelve appropriations bills by the October deadline, legislators can approve an omnibus bill that sets certain funding levels for various agencies, or pass a continuing resolution that keeps spending levels and program authorizations consistent with the prior year.

Agencies have some flexibility in how they spend their money, but budgets that do not clearly spell out how the money is to be spent are "very, very rare," said Steve Bell, a senior advisor at the Bipartisan Policy Center and former staff director of the Senate Budget Committee.

Usually, agencies and Congress butt heads when the latter does not want to fund something that the administration wants to fund, according to Jim Rubin, a partner with international law firm Dorsey & Whitney. The roles have been reversed in regards to Trump's budget. The Republican infighting that is taking place at a time when they control both the White House and Congress, something Rubin described as unusual, is adding another layer of complexity to the upcoming budget battle.

"It would be unusual to want to kind of flout Congress' authority when you're all in the same party, theoretically pushing for the same programs and priorities," said Rubin, who has previously served for the U.S. Department of Justice's Environment and Natural Resources Division.

Withholding money from programs the Congress has already agreed to fund but the president does not like is also illegal under the 1974 Impoundment Control Act. The law was created after former President Richard Nixon ordered the government not to spend money on an environmental project authorized by Congress. The only way a president can withhold appropriated funds is if both the U.S. House of Representatives and Senate approve a rescission proposal from the White House, something Congress is unlikely to do if it has already voted to provide that money.

Agencies can reprogram modest amounts of money from one area to another, but a larger reprogramming — a significant cut in grants to states for environmental restoration or clean up, funding for national labs, environmental enforcement — would require approval from Congress.

"All of [those] big-ticket items… are not things the executive branch can do. They can't cut funding for those unilaterally," said Rob Cowin, director of government affairs for climate and energy at the Union of Concerned Scientists.

In addition to political opposition, Trump's fiscal-year 2018 budget faces a rocky path due to time constraints. Congress is juggling several major legislative issues, including the healthcare plan overhaul, tax reform and a looming deadline on the national debt ceiling. Lawmakers therefore have little time for a regular appropriations process that will allow for consideration and adoption of separate spending bills for energy, the environment and other policy areas.

"I think everybody is betting on a [continuing resolution] at this point," Cowin said, meaning spending levels and priorities would be unchanged from fiscal-year 2017.

An agency's discretion

Once the funding question is settled by Congress, the agency will be left in charge of managing the dollars. Rubin said the agency has a fair amount of discretion to manage its own funds besides those specifically earmarked for certain programs by Congress, and he does not believe the agency will illegally disobey the will of Congress. But EPA Administrator Scott Pruitt, who is supportive of Trump's proposed 31% cut to his agency, has more subtle ways to advance the president's agenda.

For instance, budgets typically address the number of employees — referred to as full-time equivalent, or FTE, employees — that can work for each agency and a corresponding budget for staffing. But the White House can still mandate federal agency staffing reductions, as the Obama administration did in 2014 when it eliminated 456 of EPA's FTEs, regardless of the budget, and Trump has proposed to eliminate 3,700 of EPA's FTEs. Moreover, Rubin does not believe Congress will want to fight over EPA staffing levels. Outside of the headcount question, Pruitt could direct the agency's staff to focus on matters reflecting Trump's priorities while starving other parts of the agency.

The White House could also further delay political appointments. Since Pruitt's confirmation hearing in February, the Trump administration has been slow to name nominees to other positions requiring Senate approval. The Association of Air Pollution Control Agencies recently reported that the Trump administration has taken more time, on average, to make key EPA appointments than previous administrations, such as the Office of Air and Radiation chief and deputy administrator. Pruitt himself has expressed frustration that he lacks top staff, but said the agency is working diligently to fill the positions over which he does have control.

Trump's recently issued executive orders on regulatory reform will take up plenty of EPA staff hours, as will the agency's ongoing legal matters. For one ongoing case, in which a West Virginia federal judge ordered the EPA to conduct a study on how its regulations are impacting coal industry jobs, the EPA has assigned 110 employees. As a result, Rubin said the agency may lack the resources needed to attack other priorities, including rescinding the Clean Power Plan and reviewing existing regulations.

"If your administration wants to deregulate, wants to de-populate the federal bureaucracy, [to] get that work done they need people there. And the fewer the people, the longer it takes to do anything," Rubin said. "The combination of a significantly smaller staff and an increasing amount of workload for deregulation is going to lead to a regulatory block up."

With all that said, Rubin does not believe that the lack of political appointees for the EPA is necessarily deliberate. The administration may simply see other agencies as a higher priority. Moreover, "Trump has been very clear about how he thinks the government is bloated," Rubin said, noting the president's efforts to thin staffing across the federal government.

Pruitt has also taken steps that could slow down the agency, such as elevating decisionmaking on the EPA's Superfund program to the headquarters office. Rubin argues that while the move was heralded as a way to streamline the process, it could actually slow the program down. The Superfund program is typically administered by regional staff on the ground who know about the site being evaluated for clean up.

"Once you bring it to a higher level you actually politicize it," Rubin said. "It becomes a decision the administrator makes on his own. He has to be briefed ... it's not inherently streamlining to have fewer people involved."

Trump has proposed steep cuts to the EPA's key grant programs as well, but an administrator's influence on those programs is much more limited, according to Environmental Council of the States Executive Director and General Counsel Alexandra Dapolito Dunn.

Around half of the EPA's budget is made up of pass-through grants that are allocated to states to implement the many environmental programs and regulations required by law. Dapolito Dunn said the funding is not a grant in the typical sense: no application form is required and states do not compete for the funding. Instead, a formula determines how the money is divided among the states, taking into consideration things like population or need. Then each state works with its designated regional office to come up with a work plan, and the regions provide a check and balance on the states' efforts.

Changing those formulas would be difficult, and perhaps even require an act of Congress, Dapolito Dunn said. If Pruitt wants to influence the grant program, she said he could do so by streamlining the process between the states and regional offices to lessen the federal government's involvement.

"What we may see from the administrator is a desire for greater flexibility and less micromanagement of how the states spend the dollars," Dapolito Dunn said. "Congress will allocate the dollars, and then EPA will use the formulas to distribute them. So it's not like the EPA administrator would be able to give no dollars to one state, and 150% of last year's funding to another state. That's not how this works."

Unreasonable delay

Legal remedies for citizens or nongovernment organization are somewhat limited for forcing an agency to act on an issue that is not required by law. If a certain action is required by a statute, a group or individual could file a "citizens suit" complaining about a missed deadline or other action after which a court will order the agency to act. Litigation, however, takes time, causing further delay.

"So an agency can slow itself down and wait till it gets sued and eventually agree on something all the while giving it more time," Rubin said.

If the agency has an obligation to create a regulation for some issue with no certain date, or if an issue has gone unaddressed for a lengthy period of time, individuals or groups could bring an unusual delay claim. But the bar for winning such a claim in court is relatively high and Rubin said that the delay has to be significant.

For instance, the EPA has pledged to rescind and replace the Clean Water Rule, commonly referred to as the Waters of the U.S. or WOTUS, rule. A replacement definition of WOTUS is required by law, but for the Clean Power Plan, the same is not true. The EPA can rescind that regulation without replacing it, Pruitt noted May 24.

However, if the EPA does not replace the Clean Power Plan it must also address a finding that carbon emissions endanger public health, but no deadline exists for doing so. If Pruitt does not rescind the endangerment finding and fails to issue a new regulation for carbon, environmental groups could file an unreasonable delay claim, but Rubin is not sure how long the delay would have to be for such a claim would be valid.

"If the agency pulled the Clean Power Plan out and left nothing there ... there would be grounds for an unreasonable delay claim at some point by the NGOs, but it wouldn't necessarily be in one year," Rubin said. "It could be two years, could be three years. Courts differ on what they consider to be an unreasonable period of time."