New Executive Order Directs Agencies to Employ Emergency Authority to Expedite Infrastructure and Other Civil Projects

Legal Alert

On Thursday, June 4, 2020, President Trump signed an Executive Order (“EO”) directing federal agencies to broadly use their existing emergency authority to shorten permitting timelines for transportation infrastructure, civil works, energy, environmental and natural resources and other related projects.  The EO’s stated goal is to “strengthen the economy and return Americans to work” to alleviate the economic emergency created by the response to the COVID-19 pandemic.

I. Federal agencies must identify and implement mechanisms to fast-track projects under existing emergency and other streamlining provisions of NEPA, ESA, and CWA.

The EO instructs agency heads to “take all appropriate steps to use their lawful emergency authorities” to respond to the COVID-19 economic emergency by “expedit[ing] delivery of” various infrastructure and other federal and federally approved projects.  Precisely how these agencies will heed this call remains to be seen.  At a minimum, the EO requires federal agencies to identify projects that might fall within existing emergency and non-emergency streamlining provisions—including  waivers, exemptions, or other mechanisms—under the Clean Water Act (“CWA”), Endangered Species Act (“ESA”), and National Environmental Policy Act (“NEPA”), among others.  Agency heads are required to identify and evaluate all projects in their purview and to submit monthly status reports on efforts to expedite under these emergency provisions.

With limited exceptions, the order applies to all federal executive and military departments, and governmental and government-controlled corporations, but excludes independent regulatory agencies like the Federal Trade Commission, the Mine Enforcement Safety and Health Review Commission, and, importantly to many energy-related infrastructure projects, the Federal Energy Regulatory Commission.  The EO expressly applies to transportation infrastructure projects; civil works within the Army Corps of Engineers’ purview; and infrastructure, energy, environmental, and natural resources projects on federal lands; but may have even broader reach under a catch-all extending expedited treatment to “other actions . . . that will strengthen the economy and return Americans to work.”  Sec. 2.

II. The EO empowers agencies to construe and apply their existing expediting authority and procedures broadly.

The EO, which is issued under the President’s National Emergencies Act powers, assumes an expansive—and perhaps overly broad—view of the emergency and expedited processing provisions within NEPA, ESA, and CWA.  With respect to NEPA, the order invokes existing NEPA rules that, the Trump administration claims, in “emergency situations” allow “actions with significant environmental impacts” to proceed “without observing [NEPA] regulations.”  Sec. 6.  That characterization ignores other key elements of those emergency regulations, including provisions that limit these emergency procedures to authorize only those narrow actions “necessary to control the immediate impacts of the emergency” itself.  43 CFR § 46.150(a), (d).

Noticeably absent from the order is any express mention of the National Historic Preservation Act (“NHPA”) or Coastal Zone Management Act (“CZMA”), both of which can pose significant burdens and delays in the infrastructure permitting process.  However, the EO’s “catch all” clause in Section 9 likely functions to incorporate any emergency or expediting provisions in those authorities as well.  Additionally, proceeding under emergency provisions of the expressly mentioned NEPA, ESA, and CWA may allow some projects to avoid or limit time-consuming consultations under NHPA and other rules.

Efforts to expedite NEPA review and shorten permitting time for infrastructure projects are nothing new.  The Obama administration pursued similar reforms in 2010-2011 as a response to the Great Recession.  That administration, however, focused on technological improvements and pilot projects to expedite review, rather than invoking emergency provisions.

III.      Benefits for projects are unclear.

Individual projects may have an opportunity to benefit from reduced permitting timelines under the EO as federal agencies are empowered make more sweeping use of existing emergency provisions to prioritize projects and incentivize expedited review.  However, many existing emergency provisions are not clearly applicable to economic emergencies, and their use in this context may invite legal challenges.

Project proponents should consult their legal advisor to see whether their project might be eligible for expedited treatment and the possible impacts of that process. For specific guidance on your project, please contact Stoel Rives.

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