Never a dull moment in environmental news the past few years and Trump’s recent Executive Order signed in June 2020 is the latest development. The Executive Order broadens the definition of emergency powers to bypass environmental requirements that were previously narrowly applied to respond to emergencies such as natural disasters. In this Executive Order, it expands that definition to include COVID-19 emergencies. Which makes sense such as an emergency project that can be approved quickly under the Executive Order. For example, the Federal Emergency Management Agency needing to quickly build field hospitals to treat COVID-19 patients. But some are concerned that this Executive Order would allow a much broader application of the National Environmental Policy Act (NEPA) bypassing.
1. The Executive Order in a nutshell?
The Executive Order authorizes federal agencies specifically the Secretary of Transportation; Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works; Secretary of Defense; Secretary of the Interior; and the Secretary of Agriculture to:
- Apply their emergency authority to prioritize infrastructure projects and any investments that “will strengthen the economy and return Americans to work”;
- Requires a summary report by July 4 listing all projects that have been identified as expedited projects; and
- Requires monthly status reports on the expedited projects for the duration of the COVID-19 national emergency.
In addition to the above federal agency requirements, the Executive Order also calls out the following environmental regulations and their emergency regulations and procedures. It requires all agencies to identify any actions that may be subject to these regulations and determine whether they may be subject to emergency treatment or exemptions:
- National Environmental Policy Act (NEPA)
- Endangered Species Act (ESA)
- Clean Water Act (CWA) and Other Statutes Administered by the Army Corps of Engineers
- Other Authorities Providing for Emergency or Expedited Treatment of Infrastructure Improvements and Other Activities
2. What types of projects does this apply to?
While it seems that the Executive Order is primarily targeting expediting projects like fossil fuel pipelines, oil and gas drilling, and infrastructure projects such as highways, it does include broad categories such as:
- Transportation Infrastructure Projects
- Civil Works Projects involving the Army Corps of Engineers
- Infrastructure and other Projects on Federal Lands
3. What next?
Federal agencies such as the Department of Transportation and the Bureau of Land Management may see a push by project developers and other proponents of major infrastructure projects to expedite environmental reviews under this Executive Order. But litigation is expected and we are already seeing challenges by environmental groups such as Center for Biological Diversity who question the Executive Order’s “emergency power”: “There’s quite a difference between rebuilding after an earthquake and claiming we need to build an oil pipeline to fight the coronavirus.”
Scout Environmental will continue to track these developments, be available to explain how the Executive Order may affect you and your projects, and help guide you in expediting your projects.
Contact me to hear more about how we can help you: firstname.lastname@example.org