January 18, 2021

Volume XI, Number 18

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January 15, 2021

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The Fate of Executive Orders after 2020 Election

During 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:

  • A Biden administration could revoke the EOs entirely or could do the following:

    • Modify the EOs to keep the streamlining goals but eliminate the limits of certain technical reviews.

    • Modify the EOs to tighten the definition of “infrastructure projects” to exclude energy/fossil fuel projects.

  • 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).

  • 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.

Executive Order

Title

Publication Date

Citation

Summary

13927

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.

13924

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.

13892

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.

13891

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.

13868

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.

13867

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.

13807

Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects

 

8/24/2017

84 FR 40463

Directs agencies to complete all federal environmental reviews and authorization decisions for major infrastructure projects within two years.

13783

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.

13778

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).

13777

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. 

13771

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.

13766

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.

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© 2020 Jones Walker LLPNational Law Review, Volume X, Number 280
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About this Author

Meghan E. Smith Litigation Attorney Jones Walker New Orleans, LA
Partner

Meghan Smith is a partner in the Litigation Practice Group. She focuses her practice on environmental/toxic tort, energy, and construction litigation and arbitration. Meghan also advises clients on regulatory compliance issues.


Meghan has worked in defense of numerous major corporations, including oil and gas companies, chemical manufacturers, and engineering/construction firms in state and federal litigation and private arbitration. Recent examples include representing various clients in defense of claims arising from the sudden appearance of a...

504.582.8709
Alex Prochanska, Jones Walker Law Firm, Business and Real Estate Attorney
Special Counsel

Alex Prochaska is special counsel in the firm’s Business & Commercial Transactions and Real Estate Practice Groups in the Lafayette and Baton Rouge offices. Mr. Prochaska’s practice focuses on environmental law, including regulatory issues involving permitting and compliance, transactions, and environmental litigation.

Prior to joining Jones Walker, Mr. Prochaska spent six years as an attorney with the Louisiana Department of Environmental Quality (LDEQ) with the last two as Special Counsel to the Assistant Secretary of the Office of...

337-593-7616
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