On June 4, 2020 President Trump signed an Executive Order titled “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” allowing—and, in fact, directing—federal agencies to circumvent environmental permitting requirements in order to expedite infrastructure projects. The Order is based on the President’s March 13, 2020 declaration of national emergency due to the Novel Coronavirus Disease (“COVID-19”) outbreak and the resulting dramatic downturn in the economy; apparently, the administration concluded that “without intervention, the United States faces the likelihood of a potentially protracted economic recovery with persistent high unemployment.”

The Order directs federal agencies to take all reasonable measures to speed infrastructure investments in order to strengthen the economy. It focuses on expediting the delivery of transportation infrastructure projects, civil works projects, and projects on federal land, directing the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture to “use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated” highway and other infrastructure projects; civil works projects; and infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

The Order specifically focuses on the National Environmental Protection Act (“NEPA”), the primary federal statute requiring environmental review, requiring federal agencies to utilize NEPA’s emergency procedures to the fullest extent possible.  These emergency procedures allow agencies to approve actions with significant environmental impacts without observing NEPA regulations.  It further directs agencies to use NEPA statutory exemptions, categorical exclusions, analyses already completed, and concise and focused analyses to the fullest extent possible.

The Order contains similar directives with regard to other key federal environmental laws, directing agencies to take advantage of emergency permitting provisions to the fullest extent possible under the Endangered Species Act, the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection Research and Sanctuaries Act. Within 30 days, agencies are required to create a report listing all previously planned or new projects expedited pursuant to this Order.

The Order is consistent with the Trump administration’s ongoing effort to reduce governmental red tape in general, and environmental permitting requirements specifically. However, it remains to be seen whether this is within the scope of the President’s executive authority.  While these laws do contain emergency provisions allowing for expedited permitting and review, the agencies (and the courts) interpret them narrowly.  For example, the NEPA regulations allow for alternative arrangements for NEPA compliance in emergency situations upon consultation with the Council on Environmental Quality (“CEQ”), but use of those regulations is limited to “actions necessary to control the immediate impacts of the emergency.” We can expect litigation challenging the Order, and it remains to be seen to what extent it will actually impact agency action.

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