The Department of Energy is asking a federal judge to temporarily halt a lawsuit over a report that seeks to bolster the Trump administration’s case for repealing a key climate change finding.
In a motion late Monday, the Justice Department said that the government shutdown prevents its attorneys from working, “even on a voluntary basis, except in very limited circumstances including emergencies involving the safety of human life or the protection of property.”
The filing came hours after the Environmental Defense Fund asked Senior Judge William Young of the U.S. District Court for the District of Massachusetts to set a schedule for the case involving the “Climate Working Group” assembled by Energy Secretary Chris Wright.
EDF and the Union of Concerned Scientists filed a lawsuit in August, claiming that the agency violated the Federal Advisory Committee Act by using a group of handpicked climate skeptics to make a scientific case to repeal the 2009 endangerment finding.
Young, a Reagan appointee, last month denied the challengers’ attempts to bar the working group’s report from EPA’s review of the endangerment finding. But he said the green groups could still challenge any final agency action that relies on the working group’s report and found the authors had provided “advice or recommendations” and were likely subject to FACA.
DOE has argued that the lawsuit is moot because the working group has been disbanded.
EDF has pointed to news stories to argue that, despite DOE’s assertion, the working group is still operating and “plans to respond to comments and issue a revised report.” The green groups said that recent reporting shows EPA is working to finalize the revocation of the endangerment finding by mid-December, with agency staff working despite the government shutdown.
“Time is thus now of the essence to ensure that plaintiffs can, as this court indicated would be necessary to remedy plaintiffs’ informational harms, receive [the Climate Working Group records] in advance of a possible future rescission of the endangerment finding,” EDF wrote.
EDF also said that DOE and the working group missed an Oct. 14 deadline to answer the legal complaint and are “currently in default.” The challengers noted that EPA has moved to dismiss the lawsuit, and the motion is pending.
The green groups said that DOJ opposed the motion to establish a pretrial calendar and said it would move to stay the proceedings, although it had not previously asked to do so.
EDF said numerous courts have denied stays in cases where challengers would suffer “irreparable harm or be prejudiced if litigation were placed on pause indefinitely.”
DOJ’s contingency plan for a lapse in appropriations explains that federal employees may continue to perform activities “for which there is express legal authorization to continue,” EDF wrote.
Government lawyers, however, argued that because the case “does not present any imminent threat to the safety of human life or the protection of property,” employees are not authorized to work on it until DOJ’s funding is restored.
They wrote that a number of federal district courts have granted stays of nonemergency civil litigation until the shutdown is resolved. The government’s attorneys, the motion said, “greatly regret any disruption caused to the court and the plaintiffs.”
Still, the government wrote that if Young denies the stay, its attorneys “will be required to — and will — comply.”
