President Donald Trump signed an executive order Thursday calling on federal agencies to use emergency powers to “accelerate” infrastructure projects on federal lands as a response to the coronavirus pandemic.
The order urges the Interior, Agriculture, and Defense departments to use emergency powers under the Endangered Species Act, Clean Water Act and National Environmental Policy Act (NEPA) to speed projects through the approval process.
It was signed following Trump’s use of the Stafford Act to declare a national emergency in March as the Covid-19 crisis gripped the U.S. The law dictates how the federal government responds to natural disasters.
The order invokes a NEPA provision that allows federal agencies to consult with the White House Council on Environmental Quality to determine “alternative arrangements” for complying with the environmental review requirements of NEPA during a national emergency.
The agencies have 30 days to report which projects they may accelerate using emergency powers, according to the order.
The Interior and Agriculture departments together oversee more than 600 million acres of federal lands nationwide, including national parks, forests, and other public lands. Interior didn’t answer a question about its emergency legal authorities, but said it’s part of the administration’s push to “take decisive actions to protect Americans and get our economy back on track.”
“The Department has been a leader, taking deregulatory actions that are data-driven and backed by science, grounded in the law and supported by common sense,” Interior spokesman Conner Swanson said in an email.
The Agriculture Department didn’t immediately respond to a request for comment.
Legal Risk?
Companies involved in potentially expedited projects now have a “huge legal risk” due to the executive order, said Elizabeth Klein, the deputy director of the State Energy and Environmental Impact Center at the New York University School of Law.
Expedited projects likely would face more court challenges because the emergency authorities cited by the White House aren’t meant to be used for broad economic recovery, she said. The order is “ignoring the law” and suggests that agencies not undertake environmental impact reviews that otherwise would be required, Klein said.
But attorney Bob Comer, co-head of U.S. mining for Denver-based Norton Rose Fulbright US LLP, said the order won’t necessarily put companies involved in expedited projects at greater risk, because environmental groups would have filed lawsuits on the projects anyway.
“It’ll probably just lead to another count in the litigation that’s always filed with respect to these kinds of projects, but not necessarily more litigation,” Comer said.
The Council on Environmental Quality, known as CEQ, historically considered exemptions to be emergencies when lives and public safety were under threat, Klein said. Specific cases include an evacuation route built in Hawaii after a volcano eruption and rebuilding the levees damaged in Hurricane Katrina.
“Is rebuilding our nation’s crumbling infrastructure immediately necessary?” said Elizabeth Goitein, director of the Liberty and National Security Program at NYU Law’s the Brennan Center for Justice.
“A blanket waiver for long-term projects, to me, doesn’t quite seem consistent with the spirit or necessarily even the letter of those regulations,” Klein, a former Interior officials in the Clinton and Obama administration, added.
An oil industry group, meanwhile, welcomed the changes in the executive order.
“Removing bureaucratic barriers that stifle economic growth is paramount to getting American energy workers back in their jobs and spurring business investment that gets our economy moving again,” said Anne Bradbury, head of the American Exploration and Production Council, which represents oil companies.
The energy industry also hailed the order as a major job-creation effort.
“Getting energy infrastructure projects approved and moving will go a long way in re-starting our economy while creating well-paying, middle-class sustaining jobs,” Robin Rorick, American Petroleum Institute vice president of industry operations, said.
License to Build?
The language the White House is using to describe the order is “horrifying” because it suggests federal agencies will have license to build projects as quickly as possible with minimal environmental oversight, said Nada Culver, senior policy counsel for the National Audubon Society.
Since taking office in 2017, the Trump administration has moved to expedite oil and gas development, mining, and logging on federal lands by revising the rules that implement the National Environmental Policy Act and reducing the number of projects that require a detailed environmental review under the law.
For example, the U.S. Forest Service, part of Department of Agriculture, is revising oil and gas leasing rules for national forests. The changes aim to allow forest officials to make quick decisions on oil drilling in national forests with less environmental analysis.
“This certainly sets out a lot of different avenues for avoiding the applications of laws that protect people, air, water, and wildlife,” Culver said. “There is a glaring omission of ensuring that any of this is done in a transparent manner. While there are two rounds of reports on the actions that will be taken, they are not required to be made public.”
Rulemaking Push
The Council on Environmental Quality also previously embarked on rulemaking to speed environmental permitting for major projects such as roads, bridges, and pipelines.
That proposal seeks the most significant changes to NEPA in more than four decades. It would de-emphasize the way the government would consider climate change in environmental permitting, though CEQ chairman Mary Neumayr has said the planned changes wouldn’t exclude consideration of greenhouse gases in project reviews.
Christy Goldfuss, who headed CEQ during the Obama administration and is now senior vice president of energy and environment policy at the Center for American Progress, blasted the executive order as “a false choice to pit expediting projects against protecting our clean air, water, and communities.”
She said the Trump administration is “giving agency leads the excuse to ram through polluting projects that will prop up the dying fossil fuel industry, while destroying the very same communities that are dying at higher rates from Covid-19 and police violence, as well.”
— With assistance from Jennifer A. Dlouhy (Bloomberg News) and Cheryl Bolen (Bloomberg Law).
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