In May and June, President Trump issued several Executive Orders (one: https://www.whitehouse.gov/presidential-actions/eo-accelerating-nations-economic-recovery-covid-19-emergency-expediting-infrastructure-investments-activities/) to address the economic impacts of the COVID-19 pandemic, focusing on certain infrastructure, transportation, and civil works projects. The Orders are intended to expedite infrastructure projects by requiring agencies to take “all reasonable measures to speed infrastructure investments”, including exercising the emergency statutory provisions of various federal environmental regulations in order to bypass their procedural requirements. These apply to projects undertaken and managed by federal agencies, such as the Dept of Transportation, Dept of the Interior, Dept of Energy, Defense Dept, and Army Corps of Engineers.
Citing the state of emergency as a result of the pandemic, the Executive Orders also direct federal agencies to invoke specific emergency authorities found in federal environmental rules, such as NEPA, ESA, CWA, CAA, and others to shorten or eliminate environmental regulatory procedures to hasten projects to better expedite an economic recovery.
For example, the Order encourages agencies to utilize the emergency regulations and procedures under NEPA by allowing agencies to consult with the White House-based Council on Environmental Quality to develop “alternative arrangements” in emergency circumstances. These include statutory exemptions and categorical exclusions.
The Order calls on agencies to review and exercise all opportunities and guidance documents that may provide waivers, exemptions, or other streamlining with regard to agency actions on infrastructure, energy, environmental, or natural resources matters.
Agencies are also directed to:
• identify rules that may slow economic recovery and take legal actions to rescind, modify, or waive them;
• grant extensions of time in enforceable agreements that may harm recovery;
• use, if possible, any emergency authorities available to support economic growth.
Given it is likely that these Orders will be challenged in court, businesses should not believe that environmental rules will go away for them. The Orders may not offer a permanent waiver of legal requirements under federal environmental rules for a project. Therefore, the principals of any project may be subject to future challenges should it skirt established environmental standards.
CCES has the experts to provide technical assistance on compliance with federal and state environmental rules for any proposed project (Please consult legal counsel for determination of legal compliance). Our experts have decades of experience helping diverse processes comply with such air pollution rules. Contact us today at 914-584-6720 or at karell@CCESworld.com.