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US government partial shutdown starts to impact energy-related lawsuits

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US government partial shutdown starts to impact energy-related lawsuits

Attorneys working on energy-related litigation involving the U.S. Environmental Protection Agency are beginning to feel the effects of the impasse over funding for portions of the federal government.

U.S. Department of Justice lawyers representing the EPA have started requesting stays for ongoing lawsuits as congressional Democrats continue to spar with President Donald Trump over funding for his promised wall along the U.S.-Mexico border. The stalemate has caused roughly one-quarter of the federal government, including the EPA, DOJ and U.S. Interior Department, to cease nearly all operations; only actions considered essential to the protection of human life and property will be permitted during the partial shutdown. Congress already authorized spending for most other federal agencies, such as the Department of Energy and the Federal Energy Regulatory Commission, for the current fiscal year, which runs through September 2019.

Out of approximately 14,000 employees nationwide, the EPA estimated that nearly 800 workers will be retained at its Washington, D.C., headquarters and regional offices under a contingency plan posted on the agency's website. In accordance with shutdown guidelines established in 2011, the DOJ already has requested court stays in some EPA-related litigation.

For example, in Waterkeeper Alliance v. EPA (No. 18-1289) a legal challenge to the Trump administration's changes to an Obama-era coal ash storage rule DOJ lawyers on Dec. 31, 2018, asked that the case be paused "until Congress has restored appropriations."

"Absent an appropriation, Department of Justice attorneys and EPA employees are prohibited from working, even on a voluntary basis, except in very limited circumstances," the court filing stated. The filing went on to request that all current deadlines for the parties be extended to reflect the lapse in appropriations if the motion for a stay is granted. Electric utility companies that have intervened in the case as respondents consented to the requested stay, while environmental groups have reserved the right to seek resumption of briefing if the shutdown continues "indefinitely," according to the filing.

"We were willing to agree to a short delay, and to some extent, it's beyond our control," said Thomas Cmar, an Earthjustice attorney representing environmental plaintiffs in the suit. "But at a certain point, the federal courts would have the authority to expect the DOJ and EPA to live up to their responsibilities to the court and their responsibilities under law, and it's certainly within the court's authority to issue orders to EPA directing it to meet deadlines even during the shutdown."

If the stay is not granted, the EPA will continue to provide legal or technical support necessary to meet any court deadlines or orders, including court appearances and responses to discovery requests, according to the DOJ's 2011 guidance. In implementing its shutdown procedures, the EPA "will consult with DOJ and follow its guidance," the contingency plan said.

The DOJ did not respond Jan. 2 to a request for comment regarding the stays.