Will the government shutdown delay implementation of new EPA regulations?

October 16, 2013

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Lawmakers may have adopted a more optimistic tone about ongoing negotiations in recent days, but it remains unclear when they will be able to reach a comprehensive agreement to reopen the government.

This has led to some speculation that the implementation of regulations—including new Clean Air Act standards—being developed by the U.S. Environmental Protection Agency (EPA) could be delayed. While a prolonged shutdown could potentially have such an effect, even with the gridlock that has dominated Washington recently, observers say it does not seem likely that the current situation will have a significant impact on the roll-out of new rules that are currently “in the pipeline.”

Former EPA official: Shutdown unlikely to have significant impact

Jeff Holmstead, who previously served as EPA’s assistant administrator for air and radiation, noted that the agency’s role in crafting regulations is “part of a process that takes years, so a government shutdown of a few days or a few weeks doesn’t really have a big impact.”

That doesn’t mean there will be no effect. The shutdown has already interfered with the EPA’s plan to hold 11 public listening sessions focused on its proposed restrictions on carbon emissions from new power plants. The agency will need feedback about the potential impact these rules would have on different types of plants to design standards that can realistically be implemented and enforced. However, Holmstead explained that this process is “not really a significant part of rulemaking at this point” and cancelations are unlikely to affect the overall timeline.

“On a rulemaking of this size, EPA almost always extends the rulemaking anyway,” Holmstead added.

Analogous regulations that would be applied to existing power plants are due to be published in June 2014. Dina Kruger, who previously served as the EPA’s climate change director and was at the agency during the last government shutdown in 1996, told Reuters that she believes officials should be able to stay on schedule to meet that goal, even if it means they have to “work a little harder” when the agency reopens.

Companies may experience other complications related to shutdown

Kruger also explained that companies may be hit with retroactive enforcement actions in the aftermath of the shutdown. Less than 200 of the 804 employees in the EPA’s enforcement unit were exempted from furloughs, but federal regulations allow the agency to impose penalties in cases where violations are discovered after the fact.

A more immediate concern for many organizations is the EPA’s inability to issue permits in a timely fashion. Scott Fulton, a private-sector attorney who previously served as the EPA’s general counsel, told reporters that those officials who remain on duty will only be able to issue permits in cases where public health and safety are at risk.

All other permitting “does not qualify [as essential], so people should expect delays in permit processing and other licensing and approval processes,” Fulton said.

The inability to get a permit could delay construction projects, including both new buildings and expansions of existing facilities. Companies that are in need of assistance to maintain compliance and avoid liabilities should contact environmental consultants for more information about their regulatory obligations.

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