iDuring his term in office, President Trump has issued several executive orders (EOs) to implement his vision of rolling back environmental regulations and streamlining infrastructure projects. Democratic nominee Joe Biden has released The Biden Plan for a Clean Energy Revolution and Environmental Justice (the Biden Plan), which provides that “on day one, Biden will sign a series of new EOs with unprecedented reach that go well beyond the Obama-Biden administration platform….” Although the Biden Plan does not go as far as the measures outlined in the Green New Deal, the Biden Plan will likely require the rescission or amendment of some EOs issued by President Trump.
Two EOs issued early in the Trump administration may be ripe for rescission or amendment: Executive Order 13766 (Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects) signed on January 24, 2017 (82 FR 8657),and Executive Order 13807 (Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects) signed on August 15, 201 7(82 FR 40463). Both EOs focused on how to streamline the permitting process for infrastructure projects, especially in terms of the environmental review process. EO 13766 recognized the need to “upgrad[e] critical port facilities, airports, pipelines, bridges, and highways” and set up a process to have such projects designated as “high priority” by the Council on Environmental Quality (CEQ).[1] Such a designation allows deadlines for permit milestones to be set by CEQ for those projects. Several months later, EO 13807 extended the goal to streamline the environmental review process to all infrastructure projects. EO 13807’s goal is to conduct environmental review in a manner that “1) focus[es] on issues that truly matter rather than amassing unnecessary detail; 2) reduce[s] paperwork, including by setting appropriate page limits; 3) discuss[es] briefly issues that are not significant; and 4) prepare[s] analytic (rather than encyclopedic) documents, among other measures” (Sec. of Interior Order 3355). It also directs executive agencies to complete all environmental reviews for major infrastructure projects within two years.
In the three years since the issuance of these EOs, the CEQ has conducted studies that found the average length of an Environmental Impact Statement (EIS) was over 600 pages and the average time for agencies to complete an EIS was 4.5 years. The Office of Management and Budget and CEQ have also issued several guidance documents and MOUs that have been in place since 2018 to further the goals of the EOs. One guidance document establishes the One Federal Decision Framework. In addition, several executive agencies have proposed rules to achieve the goals expressed in EO 13766 and EO 13807, with CEQ’s final rule published on July 15, 2020, taking effect on September 14, 2020. The final rule incorporated the page limitations and time limitations for NEPA review, but it also backed off the more aggressive restriction of climate change review. The following are possibilities that may affect the EOs and rules/guidance issued pursuant to the EOs:
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A Biden administration could revoke the EOs entirely or could do the following:
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Modify the EOs to keep the streamlining goals but eliminate the limits of certain technical reviews.
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Modify the EOs to tighten the definition of “infrastructure projects” to exclude energy/fossil fuel projects.
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The CEQ final rule falls within the “carry over” period of the Congressional Review Act,[2] meaning that the next Congress will have an opportunity to nullify the rule (if there is a change in control of both chambers and a change in the presidency).
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Pending litigation over elements of the CEQ Final NEPA Rule may affect the rule’s implementation in the event of a Trump second term and/or Senate control remaining in Republican hands.[3]
A Trump reelection will likely see further deregulation action. Environmental Protection Agency (EPA) Administrator Andrew Wheeler recently indicated the same in a Heritage Foundation virtual event on July 29, 2020.
Below is a list of EOs that may that may be amended or revoked under a Biden administration and will continue to support a Trump administration in future regulatory reforms.
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Executive Order |
Title |
Publication Date |
Citation |
Summary |
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Accelerating the Nation’s Economic Recovery From the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities |
6/9/2020 |
85 FR 35165 |
Provides for accelerating permitting processes under NEPA, Endangered Species Act, and the Clean Water Act for infrastructure projects. |
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Regulatory Relief to Support Economic Recovery |
5/19/2020 |
85 FR 31353 |
Provides for agencies to temporarily or permanently rescind, modify, waive, or provide exemptions from regulations that may inhibit economic recovery. |
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Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication |
10/15/2019 |
84 FR 55239 |
Requires agencies to provide public notice of any legal standard that may be applied against parties and also provides that guidance documents cannot be used to impose new standards on parties unless authorized by law. |
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Promoting the Rule of Law Through Improved Agency Guidance Documents |
10/15/2019 |
84 FR 55235 |
Provides that guidance documents that have not gone through notice and comment procedures are to be treated as nonbinding in law and in practice. |
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Promoting Energy Infrastructure and Economic Growth |
4/15/2019 |
84 FR 15495 |
Provides for Clean Water Act Section 401 Water Quality Certification regulations to be revised. |
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Issuance of Permits With Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States |
4/15/2019 |
84 FR 15491 |
Provides that the president shall have sole authority to issue, deny, or amend permits for infrastructure projects at international borders. |
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Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects
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8/24/2017 |
84 FR 40463 |
Directs agencies to complete all federal environmental reviews and authorization decisions for major infrastructure projects within two years. |
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Promoting Energy Independence and Economic Growth |
3/31/2017 |
82 FR 16093 |
Directs agencies to review regulations that burden domestic energy development and to suspend, rescind, or revise those that are unduly burdensome. |
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Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule |
3/3/2017 |
82 FR 12497 |
Directs the EPA and the USACE to consider rescinding the Waters of the United States Rule and conduct rule-making using Justice Scalia’s test in Rapanos v. United States, 547 U.S. 715 (2006). |
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Enforcing the Regulatory Reform Agenda |
3/1/2017 |
82 FR 12285 |
Requires agency heads to identify regulations that eliminate jobs, are outdated, impose costs that exceed benefits, or are inconsistent with regulatory reform initiatives. |
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Reducing Regulation and Controlling Regulatory Costs |
2/3/2017 |
82 FR 9339 |
Provides that for every new regulation issued, at least two prior regulations be identified for elimination and provides for a net zero increase in regulations. |
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Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects |
1/30/2017 |
82 FR 8657 |
Provides for deadlines for completing environmental reviews of high-priority infrastructure projects. |
The next article in this series will look at the potential impact on enforcement.
