President Signs Order Waiving Environmental Reviews for Key Projects

On June 4, 2020, President Trump signed an Executive Order “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”   According to the Washington Post report, the order instructs “agencies to waive long-standing environmental laws to speed up federal approval for new mines, highways, pipelines and other projects given the current economic ’emergency.’ Declaring an economic emergency lets the president invoke a section of federal law allowing ‘action with significant environmental impact’ without observing normal requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act. These laws require agencies to solicit public input on proposed projects and analyze in detail how federal decisions could harm the environment.”

The order directs that “Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  As set forth in this order, agencies should take all reasonable measures to speed infrastructure investments and to speed other actions in addition to such investments that will strengthen the economy and return Americans to work, while providing appropriate protection for public health and safety, natural resources, and the environment, as required by law.”

The President maintains that waiving requirements will help the country recover from virus-related economic losses.

There are instructions in the order specific to:

  • Expediting Delivery of Civil Works Projects Within the Purview of the Army Corps of Engineers
  • Expediting the Delivery of Infrastructure and other Projects on Federal Lands
  • National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures
  • Endangered Species Act (ESA) Emergency Consultation Regulations
  • Emergency Regulations and Nationwide Permits Under the Clean Water Act (CSW) and Other Statutes Administered by the Army Corps of Engineers

The Post report says, however, that “It is unclear how the directive will affect individual projects, especially since developers are often wary of legal challenges they could face from environmental or public interest groups. Jason Bordoff, founding director of Columbia University’s Center on Global Energy Policy, said in an email that ‘companies would be reluctant to rely on such an executive order,’ knowing they would later have to prove that they were operating in an emergency.”

Additionally, the Post notes, “Thomas Jensen, a partner at the firm Perkins Coie, said in an email that any decisions made in response to the executive order could be challenged in court. He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. ‘I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,’ Jensen said, referring to actions in a Washington park this week. ‘It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.'”