Government Shutdown Versus The Environment

An article published in Law360 by law firm Faegre & Benson used as an example the recent government shutdown in Minnesota to demonstrate the potentially unforeseen impacts of such a shutdown on the environment and environmental regulation.

Photo by Phil Roeder. Some rights reserved.

The most tangible interruption seemed to be the permitting and review process usually undertaken by the Minnesota Pollution Control Agency and Minnesota Department of Natural Resources. An estimated 240 construction stormwater permits would have been reviewed during the 20-day shutdown had everything been running normally.

And what would such a shutdown look like at the federal level, for the EPA?

While the budget itself almost crippled the EPA – riders that would have prevented the EPA from regulating GHG emissions were cut from the final agreement at the last minute – the narrowly missed shutdown could have had widespread effects on businesses, parks, and more.

A piece in the Huffington Post recalls the last government shutdown, in which 600+ sites halted toxic waste cleanup work, 300+ National Park Service sites were closed, and 12 national marine sanctuaries were shut down. Not to mention the approximately 18,000 employees at the EPA that were furloughed for the duration of the shutdown.

Of course, this is all according to plan. The Antideficiency Act (31 USC 1341, 1342) authorizes agencies to incur obligations in advance of appropriations only in certain “excepted” situations. For instance, agency functions that addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property, may continue to perform during a shutdown. Examples of excepted activities at the EPA include certain Superfund response site work and emergency response readiness operations.

The week of April 4th, when a government shutdown seemed well within the realm of possibility, EPA Administrator Lisa Jackson sent an email to EPA employees, urging them to plan for an “orderly shutdown.” A few days later, the EPA released a Contingency Plan for Shutdown, which got down to the nitty gritty of who was to do what, when, and how, in the event of an actual shutdown.

We scraped by un-shutdown this time, but given the recent economic volatility, I suppose I should at least feel relieved that there’s a plan in place in the face of chaos. Let’s just hope we never have to use it.

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