On June 4, 2020, President Trump signed a new Executive Order ("EO") aimed at accelerating the initiation and completion of infrastructure projects to spur on the United States' economic recovery from the COVID-19 pandemic.1 At the heart of this latest EO is a mandate to expedite required environmental reviews for these projects under the National Environmental Policy Act ("NEPA") through reliance on the Council on Environmental Quality's ("CEQ") "emergency" powers to bypass the standard NEPA process. Like many of the Trump Administration's regulatory reform EO's, this one appears to lack robust legal underpinnings. That said, project proponents struggling their way through challenging and protracted NEPA reviews on infrastructure projects with the Army Corps of Engineers ("Army Corps") or other agencies may be well served by getting their projects on these prioritized lists for expedited federal reviews as contemplated under the EO.
Scope of Trump Administration's Infrastructure EO. Citing the economic impact of the COVID-19 outbreak as an ongoing national emergency, the June 4th EO directs federal agencies and executive departments to pursue all possible legal means to expedite infrastructure projects for the purpose of stimulating the economy. The EO specifically obligates the secretaries of Transportation, Army, Agriculture, Interior and Defense, within 30 days of EO issuance, to create lists of infrastructure projects under their jurisdiction that may be expedited and proceed with due haste to complete and obtain mandated reviews and approvals for these projects. In regard to required project environmental reviews, the EO directs the CEQ to work with agencies to provide "flexible alternatives" to the usual environmental review process under NEPA for projects on these agency lists, including reviews required for Army Corps issuance of Clean Water Act Section 404 permits, and to otherwise accelerate or limit required consultations with other agencies under the Endangered Species Act ("ESA").
Source of EO's "Emergency Authority." The EO encourages agencies to use their "emergency authorities" to facilitate expedited government decision-making on key infrastructure projects. According to the EO, this includes taking advantage of the flexibility afforded the CEQ regarding compliance with NEPA in "emergency situations." Specifically, as set forth in the CEQ regulations, where emergency circumstances make it necessary to take an action with a significant environmental impact without going through the full NEPA process, the federal agency in charge of the action may consult with the CEQ on "alternative arrangements" to proceed with such actions.
To be clear, the EO's encouragement of alternative arrangements to bypass or alter the scope of NEPA reviews on infrastructure projects in response to the COVID-19 "emergency" represents a significant expansion of the CEQ's historical application of its emergency powers. For starters, it is worthy to note that over the last 40 years, the CEQ has only exercised its authority and approved emergency alternative arrangements 47 times and mostly for the purpose of protecting the environment as opposed to shortcutting environmental reviews.2 The majority of these approvals involved the need for immediate action in response to natural disasters - hurricanes, floods, wildfires, tornados, volcanic eruptions, disease outbreaks among endangered species populations, and large-scale insect infestations on cropland - and other imminent hazards to human health and the environment - emergency repairs to prevent damn failures, emergency clean-ups of oil or chemical spills, and transportation of nuclear waste.
Moreover, both the CEQ's regulations and guidance clarify that these alternative arrangements only apply to immediate responses to an emergency, whereas all other aspects of an agency action are still subject to full NEPA review.3 Further, any alternative arrangements approved by the CEQ cannot waive any requirements under NEPA, but instead must provide an alternative means of achieving the same requirements.
Likely Legal Challenges to the June 4th Infrastructure EO. Not surprisingly, opposition to the Administration's Infrastructure EO has been swift and forceful. In fact, the Center for Biological Diversity has already given formal notice to the Administration of its intent to challenge the order in court over its directives on ESA consultations.4 Other groups, including the NRDC,5 Center for American Progress,6 Southern Environmental Law Center,7 We Act,8 and the National Wildlife Federation,9 have all put out statements opposing the EO, some of which include an intent to challenge the EO in the future.
We expect the outcome of likely legal challenges to implementation of this EO to favor the environmental groups over the Administration. Irrespective of the outcome, however, litigation over these actions is expected to come quickly and be protracted as CEQ approval of alternative arrangements under NEPA are subject to judicial review as final agency actions, thus resulting in delays to projects subject to expedited reviews.10 The little case law that exists on these challenges likewise favors the opposition as courts have generally taken a very narrow view on what constitutes an emergency justifying these alternative arrangements for environmental reviews.11
The Path Forward Under the Infrastructure EO. While legal support for the Trump Administration's Infrastructure EO appears dubious and likely to be challenged at every turn, project developers and other proponents of important infrastructure projects may still find real and measurable value from engaging relevant agencies around the designation of their projects as worthy of "expedited" attention and decision-making under the EO. As project developers are well aware, the challenges with environmental reviews under NEPA are typically not about the need for comprehensive assessments consistent with NEPA law and policy, but more about getting the attention of agency leadership to prioritize these reviews on timetables consistent with project needs. Through expedited designations under the EO, projects will have the best chance of being advanced through full environmental reviews and complete and technically robust administrative records, but with project approvals that are issued on time and in a manner that minimizes the risk of legal challenge and facilitates the successful completion of these projects. Of course, successful engagement with the regulatory authorities requires a clear understanding of NEPA law and policy and a carefully crafted strategy to address environmental assessment obligations with the assistance of the CEQ and alignment among project stakeholders.
2 A full list with details of the alternative arrangements can be found at https://ceq.doe.gov/docs/nepa-practice/Alternative_Arrangements_Chart_051419.pdf
3 The full guidance can be found at https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf
10 Stated in the CEQ guidelines https://ceq.doe.gov/docs/nepa-practice/Emergencies_and_NEPA.pdf
11 Nat. Resources Def. Council v. Winter, 527 F. Supp. 2d 1216 (C.D. Cal. 2008).
Baker McKenzie's Environmental Group regularly advises project developer and industry stakeholders on the completion of strategic and compliant environmental assessments of energy, mining and infrastructure projects under NEPA and legal challenges to these reviews by project opponents. For more information, please contact our NEPA experts.