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White House Executive Order Seeks Acceleration of Infrastructure Projects by Streamlining Compliance with Federal Environmental Laws

On June 4, President Trump signed an Executive Order (EO) urging federal agencies “to use their lawful emergency authorities” to expedite approvals for transportation and infrastructure projects throughout the country. In what is likely to have the most immediate and most effective impact, the EO specifically calls for streamlining environmental review and compliance under key environmental laws including the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA) and the Clean Water Act (CWA). The EO encourages federal agencies to expedite projects by taking advantage of emergency provisions in several federal laws that ordinarily mandate environmental review.  The EO provides local and state agencies, as well as private developers partnering on projects with those federal agencies, with a new tool to push for expedited project development.

According to the Trump Administration, the EO is necessary to stimulate economic growth in light of the downturn caused by the COVID-19 pandemic. The EO’s Purpose (Section 1) also notes the Trump Administration’s ongoing focus to “reform and streamline an outdated regulatory system that has held back our economy with needless paperwork and costly delays.”

Streamlining Federal Environmental Review and Compliance
The EO includes multiple provisions intended to accelerate infrastructure projects by streamlining compliance with key federal environmental laws, including NEPA, ESA and CWA. Section 6 of the EO notes that the Council for Environmental Quality has provided “appropriate flexibility to agencies for complying” with NEPA in emergency situations, including through existing regulations. The provisions allow “alternative arrangements” when necessitated by emergency circumstances to approve actions with significant environmental impacts without fully complying with NEPA’s requirements. The EO describes these emergencies broadly: “not only natural disasters and threats to the national defense, but also threats to human and animal health, energy security, agriculture and farmers, and employment and economic prosperity.”

Under the EO, all federal agencies have 30 days from the signing of the EO to identify “planned or potential actions to facilitate the Nation’s economic recovery” that may be subject to NEPA streamlining via alternative arrangements, statutory exemptions, categorical exclusions, coverage by prior NEPA analyses, or otherwise using “concise and focused” NEPA review. The EO also requires federal agencies to provide updated status reports every 30 days for the duration of the national emergency.

With regard to the Endangered Species Act (ESA), Section 7 of the EO requires all federal agencies to use the ESA regulation on consultation in emergencies to facilitate national economic recovery. Section 7 directs all agencies to identify planned or potential actions to facilitate economic recovery that may be subject to that emergency consultation regulation. Similar requirements are imposed in Section 8 of the EO with regard to the Clean Water Act and other statutes administered by the Army Corps of Engineers which facilitate use of emergency regulations and nationwide permits for projects under the jurisdiction of the Army Corps.

The EO directs authorities to expedite completion of the following authorized and appropriated projects: (1) highway and other infrastructure projects within the authority of the Department of Transportation, (2) civil works projects within the authority of the Army Corps of Engineers, and (3) all infrastructure, energy, environmental, and natural resources projects on federal lands (except Indian trust lands) within the authority of the Departments of Defense, Interior, and Agriculture.

Accelerating Delivery of Transportation and Infrastructure Projects
The EO also includes other directives to accelerate federal projects more broadly than just minimizing environmental review and permitting requirements. As provided in Section 2 of the EO (titled Policy), federal agencies are required to “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 ensuring protection to people and the environment, as required by law.

Section 3 of the EO (titled Expediting the Delivery of Transportation Infrastructure Project) authorizes the Secretary of Transportation to use all emergency and other authorities to expedite the work and completion of “all authorized and appropriated highway and other infrastructure projects that are within the authority of the Secretary to perform or to advance.” Similarly, Section 4 of the EO authorizes the Secretary of the Army to speed up and complete “all authorized and appropriated civil works projects” within the authority of the Army Corps of Engineers.

The EO also provides for expediting the delivery of infrastructure and other projects on federal lands. Section 5 authorizes the Secretaries of Defense, Interior and Agriculture to expedite work on “all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands.” In addition, Section 9 requires all federal agency heads to identify with 30 days “all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment … pertinent to infrastructure, energy, environmental, or natural resources matters,” as well as projects that may be subject to expedited treatment.  The EO directs federal agencies to use such statutes and regulations “to the fullest extent permitted to facilitate the Nation’s economic recovery.”

Impact of Executive Order on Existing and New Projects
The EO largely relies on existing laws and regulations to encourage expediting infrastructure projects to stimulate economic recovery. Nonetheless, the broad scope of the EO, as well as the 30-day deadlines for all federal agencies to identify opportunities for streamlining projects and activities, reflect a significant push from the executive branch to remove or reduce environmental review and permitting as obstacles to new investments.

Whether the EO succeeds in its goal of turning the COVID crisis into infrastructure opportunity will likely depend on the responses by the Department of Transportation and the Army Corps of Engineers. While the EO provides local and state agencies and private developer partners with a newly sanctioned federal environment for accelerating project development, all parties need to understand that the EO does not waive compliance with approval and permitting obligations. Instead, the EO allows the use of alternative procedures to comply with existing statutory requirements. Project opponents will continue to scrutinize compliance with environmental review procedures or processes that may be changed pursuant to the EO. Environmental organizations and community groups may also challenge the EO’s use of emergency provisions to bypass statutory protections for the environment in the name of economic recovery.