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The Insider

EPA, Lawmakers Advance Limited Environment Agenda Amid Shutdown

While most EPA operations are suspended by the ongoing government shutdown, agency officials and lawmakers are advancing a limited number of their high-priority policies despite the lack of federal resources -- including confirmations of three top environmental officials, filing a key Supreme Court water suit brief, and state-level measures to step up drinking water protections.

Those and other moves are signs of how figures on all sides of environmental policy debates will continue trying to advance their goals during the shutdown, especially after President Donald Trump renewed his demand for $5 billion to fund a border wall even following Democrats' takeover of the House. The president's position, which he has reiterated several times, has ended any hopes for a quick resolution to the budget battle on Capitol Hill.

While the new House Democratic majority is moving forward with long-announced plans to focus on environmental oversight and climate policy, the Senate used its final hours in the 115th Congress to confirm two new assistant administrators at EPA, as well as a permanent head for the White House Council on Environmental Quality (CEQ):

Senate Confirms Two EPA Nominees, But Waste Office Pick Stalls
The Senate unanimously confirmed President Donald Trump's nominees to lead EPA's toxics and international offices in the final hours of the 115th Congress, but his nominee to lead EPA's waste office remains stalled after Democrats reportedly sought a recorded vote.

Late on Jan. 2, senators confirmed by voice vote EPA Region 1 Administrator Alexandra Dunn to serve as assistant administrator for the agency's Office of Chemical Safety and Pollution Prevention. On Jan. 3 the Senate then confirmed William Charles McIntosh, a former auto industry executive, to be assistant administrator of EPA's Office of International and Tribal Affairs.

The upper chamber's Jan. 2 agenda also featured the confirmation of acting CEQ chief Mary Neumayr to fill that position permanently, as well as Kelvin Droegemeier as head of the White House Office of Science and Technology Policy.

While all four of those officials will face limitations in their ability to act thanks to the shutdown, the confirmation votes mean they will not have to go through another nomination process now that the 116th Congress has begun, and can exercise at least limited authority since Senate-confirmed officials are exempted from mandatory furloughs.

Meanwhile, state regulators who have long pushed EPA for more stringent regulation of the array of drinking water contaminants classed as per- and polyfluoroalkyl substances (PFAS) are taking steps to adopt such measures on their own, starting with formal findings that the current federal health levels are not stringent enough:

States Take Steps To Adopt Stricter PFAS Levels Than EPA Advisories
Expert panels in Michigan and New York -- two states that are grappling with contamination from per- and polyfluoroalkyl substances (PFAS) -- say that EPA's health advisory levels for the contaminants in drinking water are not adequately protective, opening the door for regulators to adopt stricter standards than EPA's.

The recommendations from the panels signal states' growing agreement that EPA's non-enforceable health advisory levels for PFAS in drinking water, which the agency set in 2016, fail to go far enough. They follow moves by New Jersey and Vermont towards adopting much stricter levels.

Although focus is shifting away from executive agencies, EPA itself is still taking limited actions despite the shutdown. Most of its duties are focused on “essential” tasks such as spill response and processing pesticide imports, but officials at EPA and the Department of Justice -- which is also partly shuttered -- found the time to craft a Jan. 3 Supreme Court brief that urges the justices to decide whether groundwater-borne pollution is limited by the Clean Water Act (CWA):

EPA Urges High Court Review Of CWA Groundwater Liability, Eyes 'Action'
EPA is urging the Supreme Court to hear cases that could resolve a split among appellate courts over whether the Clean Water Act (CWA) limits groundwater-borne pollution, while pledging that the agency will “take further action” on the subject within “several weeks” -- although the ongoing shutdown could complicate that plan.

The same filing declares that EPA is only “weeks” away from issuing a new rule or guidance on the CWA's reach into groundwater, although that timeline does not appear to account for the shutdown.

Finally, stakeholders are debating the agency's final major action before its funding reserves expired on Dec. 28, namely the release of a long-awaited proposal that would overturn the Obama administration's finding that Clean Air Act limits on power plants' mercury and air toxics (MATS) were “appropriate and necessary,” even while leaving the rule itself in place:

MATS Proposal Spurs Uncertainty On Role Of 'Co-Benefits' In Future Rules
EPA's plan to scrap the Obama-era finding that the costs and benefits of the utility air toxics rule make the rule “appropriate and necessary” is spurring uncertainty on how the agency will count “co-benefits” that result from reductions in non-target pollutants to justify future rules' costs because the plan downplays such benefits but does not prohibit their consideration.

Even though the shutdown prevents EPA from formally taking comment on that or other rule proposals, release of the document prior to the cessation of its work tees up an informal debate on the plan, creating input that the agency can weigh once operations resume.

Inside EPA will have full coverage of the suite of policy moves taking place during the shutdown, both within the federal government and outside it, along with Congress' efforts to resolve its logjam and reopen the agency.