Earlier this week, New York’s attorney general Eric Schneiderman, joined by six other states and the Puget Sound Clean Air Agency, filed suit against the U.S. EPA alleging violation of the Clean Air Act with respect to the regulation of new residential wood-burning heaters. These plaintiffs, however, may have to hold their breath, as this case could be among the many matters on EPA’s already often overflowing plate that will just have to wait until the federal governmental shutdown is over and EPA can come back to work.

It is Day 11 of the shutdown, and EPA’s “Contingency Plan for Shutdown” (updated October 1, 2013), is in effect. Nearly 95% of EPA’s approximately 16, 000 employees have been furloughed, leaving only a relative handful of personnel authorized to continue work, as the contingency plan allows only “excepted” activities and approved “exempted activities” to proceed. “Excepted activities” may continue, even in the absence of an appropriation, “because they are authorized by law or fall with the ADA’s emergency exception.” According to the contingency plan, primary examples of such activities include:

  1. Providing for homeland and national security, including the conduct of foreign relations essential to the national security; or
  2. Voluntary or personal service necessary to respond to emergencies involving the safety of human life or the protection of property, where the threat to human life or property is imminent, including:
    1. Activities essential to ensure continued public health and safety, including safe use of food and drugs and safe use of hazardous materials;
    2. Protection of federal lands, buildings, equipment, research property, and other property owned by the United States;
    3. Law enforcement and criminal investigations; and
    4. Emergency and disaster assistance.

Specific examples of excepted activities include protecting research property in EPA’s labs (e.g., looking after the lab animals, plants, and other test organisms) and keeping EPA’s emergency response readiness operations online. With respect to Superfund site work, the contingency plan provides for continued EPA participation in sites “where a failure to maintain operations would pose an imminent threat to human life.” According to an EPA spokesperson on September 30, however, EPA anticipated suspending cleanup work at 505 of the nearly 800 Superfund sites across the country.

As for legal counseling, litigation, and law enforcement activities, law enforcement personnel “that protect human life and property from imminent threat” are excepted “for the time minimally necessary to carry out excepted activities”; attorneys may support excepted or approved exempted work where there is a “necessarily implied authorization,” which exists where “a statute directs a EPA or a governmental entity to perform an activity during a lapse in appropriations and non-performance of an attorney’s support for that activity during the funding lapse would undermine implementation of the terms of that statute.” The contingency plan notes that EPA will follow DOJ’s guidance with respect to the handling of active cases. The DOJ FY 2014 Contingency Plan anticipates the courts remaining open; criminal litigation will continue without interruption, but DOJ will seek to curtail or postpone civil litigation, including that involving EPA, “to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.” Where requests for stays are denied, DOJ will continue to service the litigation.

“Exempted activities” relate to “[c]ertain programs funded with unexpired appropriations where carryover funds remain unobligated or where the source of funds is fees and payments that are available for obligations.” Examples of activities already specifically exempted by the Administrator are programmatic activities funded with leaking underground storage tanks appropriation and activities funded through the BP financed revolving fund. Certain Superfund appropriation activities are exempted as well. The contingency plan states that, except as necessary to support excepted or approved exempted activities, EPA will, among other things, stop incurring new obligations, entering into new contacts, and engaging in certain activities under existing contracts.

During the course of the last 11 days, requests for stays of various kinds have been sought on a number of civil cases involving EPA, though not all successful (e.g., Nat’l Ass’n of Mfrs. v. EPA, No. 13-1069 (D.C. Cir.) – granted 10/8/13; Mississippi v. EPA, No. 08-1200 (D.C. Cir.) – granted 10/4/13; Center for Biological Diversity v. EPA, No. 12-1238 (D.C. Cir.) – denied 10/2/13). In related matters, the Environmental Appeals Board has closed and will not reopen until the shutdown has concluded (parties were not required to file extension motions in advance of the shutdown); and the Federal Register issued a notice that it would only publish documents certified to be “directly related to the performance of governmental functions necessary to address imminent threats to the safety of human life or protection of property.”