Government Shutdown: Impact of Shutdown on EPA Enforcement

E&E News reported that EPA will continue to operate during the shutdown relying on “carryover funds.” Carryover funds generally are unspent and unobligated funds from a previous budget period that are carried forward to cover allowable costs in a future budget period. There is no indication how long EPA’s carryover funds will allow all EPA employees to continue working versus those that are “exempted” or “excepted” personnel, meaning they can continue to work either because they are separately funded (“exempted) or must continue to work because of their position (“excepted), such as emergency responders or criminal agents.

Should EPA run out of “carryover funds,” it will turn to the EPA’s 2025 Shutdown Plan, for guidance. The Plan lists what activities will continue during a funding appropriation lapse and which will not. One of the tasks that will not lapse during a shutdown is criminal law enforcement and investigations. As to civil enforcement, according to the Plan, what can continue is “legal counseling, litigation and law enforcement activities as required.” The Plan does not define “as required” though later implies it would apply to a situation where there is an imminent threat of harm or where there is a court order that requires EPA to continue to provide legal and technical support, most likely in a situation where the U.S Department of Justice has filed a civil enforcement action and there are court deadlines.

Absent the above conditions, it is likely that a civil enforcement matter, including ongoing investigations, negotiations, or even litigation, will be paused during the current shutdown. Depending on how long the shutdown continues, we could see the same type of delays in civil enforcement matters as we saw during the 2019 government shutdown, which lasted 35 days and was the longest shutdown in U.S. history.