President Trump is walking into untested legal territory with his executive order Thursday to waive environmental reviews to allow for infrastructure projects to be built during the economic crisis from the coronavirus pandemic.
Trump’s order calls on agencies such as the Interior and Defense Departments and the U.S. Army Corps of Engineers to ignore permitting reviews required under the National Environmental Policy Act for projects such as highways, bridges, and pipelines, as well as for oil and gas leases and mines.
The National Environmental Policy Act, or NEPA, is a bedrock law that requires the federal government to analyze the environmental effects of projects.
The Trump administration has already separately proposed and is expected to finalize rules to speed and narrow regulations governing NEPA soon, the first major update to the law in more than 40 years.
But the executive order would encourage agencies to bypass NEPA during the “economic emergency” caused by the pandemic.
“Unnecessary regulatory delays will deny our citizens opportunities for jobs and economic security, keeping millions of Americans out of work and hindering our economic recovery from the national emergency,” the order says.
According to legal experts, the federal government can waive environmental regulations during an emergency, but it’s primarily been used in the past for physical reasons rather than economic ones.
The White House Council for Environmental Quality, which oversees NEPA implementation, has historically used its emergency waiver authority in limited, immediate situations such as those of a dam about to collapse, defusing land mines before war, or thinning a forest before an imminent fire.
“These emergency exemptions have always been used after physical disasters — hurricanes, earthquakes, terrorist acts,” Columbia University environmental law professor Michael Gerrard told the Washington Examiner. “They haven’t been used to provide relief from economic downturns. George W. Bush did not use emergency exemptions from environmental laws to deal with the 2008 financial crisis.”
Trump’s executive order could allow the heads of agencies to request a waiver from the CEQ for permitting reviews in a more wholesale way, said Christy Goldfuss, who led the White House Council on Environmental Quality in the Obama administration.
“It opens the door to secretaries of agencies to say they are suffering economic hardship and can waive the NEPA requirements on a more sweeping basis rather than project by project,” Goldfuss, now the senior vice president for energy and environment at the Center for American Progress, told the Washington Examiner.
It’s questionable, however, if companies would take advantage of these provisions given other permitting requirements that cannot be as easily waived, such as those involving the Endangered Species Act and Clear Water Act. The order does task agencies with identifying opportunities for possible emergency exemptions related to both of those laws too.
In addition, the prospects of environmental groups and Democrats suing over the Trump order could deter companies who dislike uncertainty, especially in an election year where a Democratic administration could reverse course.
“This will have no impact in the next five months to the extent these large-scale projects take such a long time to put together,” Goldfuss said. “It’s not going to change how complex the other pieces necessary for these projects are.”
Despite these concerns, industry officials applauded the move, crediting Trump for continuing to plug away at permitting reforms that they see as a way to boost the economy.
“If we want to rebuild America, clearing away the unnecessary regulatory hurdles that can add years to infrastructure projects that are in the public interest is a smart move — and more efficient than new stimulus dollars,” Dan Eberhart, a Trump donor and CEO of the oil field services company Canary, told the Washington Examiner.
