October 26, 2020

Volume X, Number 300

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October 26, 2020

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President Trump Orders Expanded Use of Emergency Powers to Streamline Infrastructure

On Thursday, June 4, 2020, President Trump signed an Executive Order (EO) on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.” Relying on the COVID-19 declared national emergency, the EO directs federal agencies to invoke their existing emergency authorities under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act (CWA), and other laws to expedite economic recovery, including taking “all reasonable measures” to speed infrastructure and public works projects. While consistent with prior administrative directives to expedite project permitting, this latest EO likely will have little practical effect on individual projects and generate increased litigation for projects that rely on it.

The EO aspires to expedite a variety of projects that fall under the jurisdiction of several specific federal agencies:

  • All authorized and appropriated highway and other infrastructure projects within the authority of the U.S. Department of Transportation;

  • All authorized and appropriated civil works projects under the purview of the U.S. Army Corps of Engineers; and

  • All authorized and appropriated infrastructure, energy, environmental, and natural resources projects on federal lands managed by the Department of Defense, the Department of the Interior, and the Department of Agriculture.

The EO’s main action item is periodic reporting by affected federal agencies to the White House. Agency heads must provide a summary report listing all projects expedited under their emergency authorities no later than July 4th (30 days after the EO’s issuance date), and provide status reports every 30 days thereafter. The EO specifies no end date for the national emergency or use of emergency authorities.

The EO principally relies on the government-wide NEPA regulation for emergency situations.  40 C.F.R. § 1506.11. It also invokes the ESA implementing regulation on Section 7 consultations in emergencies (50 C.F.R. § 402.05 2) and the CWA Section 404 regulations and nationwide permits addressing emergency circumstances. Lastly, the EO directs agencies to review “other authorities” potentially applicable to emergencies, including “all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment (including waivers, exemptions, or other streamlining).”  Overall, the EO intends to allow critical infrastructure and public works projects to move forward more quickly, by abbreviating or waiving legally required environmental reviews, interagency consultation, and public comment.

While the goals of reducing time and paperwork are laudable, the EO will likely be less impactful than other recent efforts (such as One Federal Decision). The emergency exemptions available under NEPA, the ESA, the CWA, and other laws are quite limited pursuant to regulations and case law. They are meant for very narrow or discrete circumstances, not for indefinite national conditions. Moreover, they do not entirely or permanently waive environmental requirements, but rather allow for deferred or alternative procedures that achieve statutory aims. For example, the NEPA emergency regulation provides that when emergency circumstances make it necessary to take actions with significant environmental impacts without observing the typical NEPA process, agencies may consult with the Council on Environmental Quality to make “alternative arrangements” to take such actions. The effort and resources required to develop such “alternative arrangements” may not save time in the overall NEPA review. Nor can an EO legally displace regulations or case law. 

Predictably, environmental organizations have already indicated a likely forthcoming challenge to the EO. Though a direct challenge may face jurisdictional obstacles, individual project approvals relying on the EO may be more vulnerable to lawsuits. And given the EO’s focus on timing, preliminary injunction motions at the commencement of lawsuits likely would be a centerpiece of those lawsuits, which likely would offset any advantage that may have been gained from relying on the EO.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 160
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About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

202-789-6009
W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies.

Parker brings a balanced approach to working on high profile projects to meet the objectives of developers and the legal demands of state and federal regulators. Clients involve him at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions. In all cases, Parker’s goal is to help his clients complete legally-defensible projects on time and on budget.

Before joining B&D, Parker clerked at the White House Council on Environmental Quality. He also is a professionally-trained wetlands ecologist and has years of experience identifying wetlands, obtaining jurisdictional determinations from the U.S. Army Corps of Engineers, surveying for protected species, and drafting NEPA documents.

202-789-6028
Associate

Ben focuses his practice on environmental compliance, permitting, and litigation.

He has represented clients in front of the Connecticut Department of Energy and Environmental Protection, Department of Public Health, planning and zoning commissions, wetlands commissions, and zoning boards of appeal.

206-620-3026
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