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Government Shutdown: Impact of Shutdown on EPA Enforcement

What You Need to Know

  • Key takeaway #1

    EPA employees were alerted on Tuesday evening that they could continue working at this time apparently relying on “carryover funds” that are not affected by a shutdown.

  • Key takeaway #2

    Should those funds run out, EPA law enforcement and criminal investigations will continue unabated.  As to civil enforcement, work should continue if needed to protect against a threat to public health and safety.  Similarly, EPA work will continue to comply with courts’ orders in existing enforcement actions.

  • Key takeaway #3

    What will not continue through the shutdown is EPA inspections, the issuance of permits, and administrative and judicial civil enforcement, unless necessary.

  • Key takeaway #4

    Absent carryover funds, it is estimated that 90% of EPA approximately 15,000-person workforce will be furloughed during a shutdown, leaving approximately 1,700 EPA employees nationwide to continue EPA’s work.  Delays in all areas of EPA work, including enforcement are expected.

Client Alert | 1 min read | 10.03.25

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.

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Client Alert | 3 min read | 06.12.26

DOJ Guidance Backs Away From Disparate Impact Liability

On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”...

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