Dems ask why EPA is preparing for Wheeler confirmation during shutdown

Senate Democrats say the Environmental Protection Agency (EPA) might be breaking the law by having employees help with Andrew Wheeler’s confirmation process to serve as the agency’s administrator during the partial government shutdown.

Under federal law and the EPA’s own contingency plan, just over 800 employees are allowed to work at the agency after its appropriations have lapsed.

But Sen. Tom Carper (Del.), the top Democrat on the Environment and Public Works Committee, said in a letter to the EPA that it’s not clear that the staff who are helping Wheeler prepare for his confirmation hearing before that panel next week are among those allowed to work.

{mosads}“We are concerned that preparations for your confirmation hearing may be occurring using resources that are not described in or authorized under EPA’s Contingency Plan,” Carper wrote, along with Sens. Ben Cardin (Md.), Sheldon Whitehouse (R.I.) and Chris Van Hollen (Md.), other Democrats on the committee.

“It is difficult to understand how preparing you for next week’s confirmation hearing credibly falls within any of the categories listed in EPA’s Contingency Plan, particularly the category of employee that is ‘necessary to protect life and property.’ Using EPA resources in this manner may also run afoul of the Antideficiency Act,” they said.

President Trump this week formally nominated Wheeler, the EPA’s acting administrator since July, to officially take that post, a nomination that requires Senate confirmation.

Sen. John Barrasso (R-Wyo.), the environment panel’s chairman, quickly scheduled a hearing for next Wednesday on Wheeler’s confirmation.

The EPA says it is certain that the staff assisting Wheeler are allowed to be working.

“EPA has excepted a limited number of employees to prepare the Acting Administrator for the hearing on January 16th,” EPA General Counsel Matt Leopold said in a statement.

“Participation in and preparation for a confirmation hearing that has been scheduled by Congress is clearly excepted under Department of Justice, Office of Legal Counsel, opinions,” he said. “Additionally, the Constitutional appointment power allows for EPA to take the steps necessary to ensure the Acting Administrator is prepared for his hearing.”

Despite some EPA employees working during the shutdown, they along with others across the government whose agencies are not funded, will not be paid until the shutdown ends.