President Donald Trump issued a sweeping executive order June 4 instructing agencies to do everything they can to streamline federal permitting of infrastructure projects in light of the economic havoc wrought by the coronavirus pandemic. The order said federal agencies should "take all reasonable measures" to speed infrastructure investments and other activities that would "strengthen the economy and return Americans to work" while providing "appropriate" health and environmental safeguards required by law.
The order asserted the need for streamlined permitting, which was already a priority for Trump, is "all the more acute" due to "the ongoing economic crisis" prompted 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 stated.
The executive order
Specifically, the order directed the heads of all federal agencies to identify actions that could be subject to alternative emergency regulations under the 50-year-old National Environmental Policy Act, or NEPA.
The act requires agencies to assess the environmental and related social and economic effects of their proposed actions, such as granting permits, approving land management plans, and the construction of highways and other publicly-owned facilities. Agencies must also allow the public to review and comment on those evaluations.
Under the order, agencies are to identify planned or potential actions to aid the nation's economic recovery that may be subject to emergency treatment under NEPA, exempt from NEPA, covered under already completed NEPA analysis, or subject to expedited NEPA analyses. The order also directed the chairman of the White House's Council on Environmental Quality, or CEQ, to be available to consult with the agencies when making such decisions "and to take other prompt and appropriate action concerning the application of CEQ’s NEPA emergency regulations."
The order directed similar actions in regards to the Endangered Species Act and Clean Water Act, including directives for agency heads to identify and report actions that may be subject to those acts' emergency regulations allowing for expedited actions, including the permitting of projects.
More generally, the order directed the agencies to "review all statutes, regulations and guidance documents that may provide for emergency or expedited treatment (including waivers, exemptions or other streamlining) with regard to agency actions pertinent to infrastructure, energy, environmental or natural resources matters."
Finally, the order said the U.S. Defense, Interior and Agriculture Departments must "expedite" the completion of all authorized and appropriated infrastructure, energy, environmental and natural resource projects on federal lands.
Short-term gain, long-term uncertainty?
In comments on the order, Joel Mintz, a former U.S. Environmental Protection Agency attorney who has written on environmental law for decades, said eliminating permitting requirements during the pandemic will help struggling companies in the short run. For instance, he said removing potential project delays will help companies secure financing at a time when capital is drying up and investors are shying away from riskier sectors of the U.S. economy, such as oil, natural gas and coal.
However, Mintz said the short-term gains could come with long-term drawbacks. He predicted that regulations issued under the executive order will almost certainly be challenged in court given the uncertainty of whether Trump has the authority to tell federal agencies to ignore laws. If such regulations are struck down, project approvals in their name could be put in legal jeopardy.
Even if the regulations stand, reviews under laws like NEPA require companies to assess the damage that could be caused by an environmental disaster — information key to understanding the full costs associated with a project.
"There's going to be litigation challenging this so there's just not going to be an immediate benefit, whether these companies realize it or not," Mintz said. "They're probably really worried they're going to lose all the money they've invested and anything that clears the way is to their benefit. But that's a very shortsighted benefit for them in the long run."
Industry trade groups focused on how the order could streamline federal environmental permitting, a policy move they had sought for some time.
National Mining Association President and CEO Rich Nolan called it an "opportunity to jump-start our economic recovery" and promote domestic mineral production, alleviating the nation's import dependence.
"Now is the time to rebuild the supply chains essential to our infrastructure, national security and the future health of our economy," Nolan said.
The American Petroleum Institute, or API, stressed the importance of putting people back to work quickly given the recent economic decline due to the coronavirus pandemic.
"We are in an unprecedented time, and getting energy infrastructure projects approved and moving will go a long way in re-starting our economy while creating well-paying, middle-class sustaining jobs," Robin Rorick, API's vice president of midstream and industry operations, said in a statement.
But environmental groups, including the Environmental Defense Fund, or EDF, opposed the order, emphasizing the threat such deregulatory actions could pose to public health and safety as well as the environment.
"The health burdens of today's expected executive order would be heavily imposed on people and communities — especially communities of color — that have suffered from industrial pollution for far too long," said EDF General Counsel Vickie Patton. "These are the actions of a president who, unjustly and unlawfully, disregards the health and safety of the people."
U.S. Rep. Jared Huffman, D-Calif., said in an interview that Democrats in Congress will likely try to use checks and balances such as hearings and appropriations language to try to control the president's attempt to unilaterally sidestep the law.
Huffman, who chairs the House Natural Resources Committee Subcommittee on Water, Oceans, and Wildlife, drew a line from the executive order to the recent tear-gassing of protesters outside of the White House, declaring it an "ultra vires" and "extra-legal" action that could hinder the democratic aspects of the permitting process.
However, Huffman acknowledged that under Trump, the executive branch has ignored those legislative controls before. Lawmakers "need to aggressively call this out and push back with the tools we have," he said.
"This is a question for the entire country," Huffman said. "There does come a point where this pattern has to stop. That's probably November."