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The Insider

EPA Shutdown Could Scramble Aggressive Timelines For Rule Rollbacks

EPA starts 2019 during an ongoing government shutdown that could last for weeks given an impasse between Democrats in Congress and the White House over funding legislation, which could scramble the agency's aggressive schedule for finalizing rollbacks of Obama-era rules.

Appropriations for several executive agencies lapsed on Dec. 21, but EPA continued working through the end of the following week, when its cash reserves ran out at midnight on Dec. 28. The agency will thus remained shuttered, with the exception of some “essential” functions that involve protection of human life or property, until lawmakers are able to either pass a spending bill that President Donald Trump will sign, or override his veto.

In the meantime, EPA officials will be unable to work on pending rules, advance those that are pending release, review public comments or even publish new Federal Register notices -- all of which are crucial steps in the rulemaking process.

Litigation over the agency’s rules is also on hold since the Department of Justice is also part of the shutdown. As a result, not only will rulemakings face delays, but it will take longer to resolve challenges to already-finalized rules, including delays or repeals of Obama-era policies.

The incoming Congress, including the new House Democratic majority, will likely turn quickly to new appropriations bills once members are sworn in on Jan. 3. But there have been few public signs from the White House of a potential compromise on the key issue driving the fight: Trump’s demand for more than $5 billion in funding for his planned wall along the U.S.-Mexico border.

If Trump is unable to reach a deal with Democrats, the shutdown could continue indefinitely. That would create new hurdles for EPA’s plan to finalize a suite of major rules by early spring, including some of its highest-profile climate policies, as well as its ongoing development of other regulations.

According to the latest Unified Agenda of rulemaking actions released Oct. 17, the agency is targeting March for final action on new greenhouse gas standards for power plants, emissions limits on vehicles and repeal of the Obama-era Clean Water Act (CWA) jurisdiction rule.

In particular, EPA is still negotiating with Democratic-led states and industry on the form that a final vehicle GHG rule will take:

Possible Stay Looms As Barrier To EPA Vehicle GHG Rollback Certainty
Critics of the Trump administration's plans to roll back strict vehicle efficiency standards are increasingly suggesting courts could stay the controversial effort, underscoring the growing pressure on the administration to either shore up its justification for the rollback or modify it, as well as industry's present inability to bank on the plan.

While deadlines in the agenda are non-binding, EPA officials and their supporters have all emphasized the need to move quickly on those and other policy changes in order to clear the path for others that are still in development, as well as to ensure that courts can rule on their legality before 2021 in case Trump loses re-election.

For instance, the agency recently unveiled its replacement for the Obama-era CWA jurisdiction rule, with plans to finalize the new standard by the end of 2019. But that timeline could be set back if the water office is still working on the repeal into the spring.

Moreover, the shutdown has prevented publication of the new proposal in the Register, meaning the 60-day public comment period cannot begin, and officials will have less time -- if any at all -- to organize a planned Jan. 23 hearing in Kansas City, KS.

Along with those long-pending rules, EPA’s air office on its last day of operations before the shutdown floated a new proposal that would repeal the Obama administration’s finding that mercury and air toxics standards (MATS) at power plants were “appropriate and necessary,” creating new confusion over the rule:

EPA Facing Legal Fight Over Plan To Retain MATS But Scrap Cost Finding
EPA is proposing to retain the Obama-era mercury and air toxics standards (MATS) for power plants but scrap the cost-benefit analysis underpinning the rule, teeing up a legal fight in which the rule's supporters will likely cite flaws in the plan while opening the door for critics to cite the lack of a cost finding to bolster their calls to undo the entire rule.

The agency faces a challenging task in scrapping the justification for the rule while leaving MATS limits in place, and will now be unable to act as initial responses to the proposal arise.

Beyond the slate of rules and rollbacks under development, the shutdown also threatens EPA’s day-to-day implementation of many environmental programs. In particular, the toxics office has already struggled to meet deadlines for action in the reformed Toxic Substances Control Act, and will now have to do so with at least a week of lost time, and possibly much more:

EPA's Toxics Office Faces Difficulty Meeting TSCA's 'Challenging' Deadlines
EPA's toxics office is grappling with meeting a series of steep deadlines that lawmakers imposed when they revised the Toxic Substances Control Act (TSCA) in 2016, a top official says. Work in the office “has been crazy,” Iris Camacho, branch chief of a Risk Assessment Division within the toxics office said during a Dec. 11 workshop at the National Academy of Sciences (NAS).

Inside EPA will have full coverage of the ongoing shutdown and its effects on environmental policy, as well as the Trump administration's effort to resume EPA's regulatory rollback agenda whenever lawmakers and the White House resolve the shutdown impasse.