By: Barbara E. Lichman, Ph.D., J.D.

On June 4, 2020, President Trump issued an Executive Order, “EO On Accelerating the Nation’s Economic Recovery from the Covid-19 Emergency by Expediting Infrastructure Investments and Other Activities” (“EO”) for the expressed purpose of forestalling “the likelihood of a potentially protracted economic recovery with persistent high unemployment,” EO, Sec. 1, resulting from the business closures necessitated by the onslaught of Covid-19. Predicated on the authority granted in the National Emergencies Act, 50 U.S.C. § 1601, et seq., and the Stafford Act, 42 U.S.C. § 5191(b), § 501(b), the President found that the Covid-19 outbreak in the United States constitutes “a national emergency that posed a threat to our national security.” EO, Sec. 1.

In order to “facilitate the Nation’s economic recovery,” EO, Sec. 2, the EO seeks to “speed infrastructure investments,” EO, Sec. 2, that will “strengthen the economy and return Americans to work, EO, Sec. 2, by, among other things, “expediting the delivery of transportation infrastructure projects, EO, Sec. 3, and civil works projects within the purview of the Army Corps of Engineers, EO, Sec. 4.

All these are laudable goals. The potential problem, however, is in the simultaneous abrogation of environmental protections in such statutes as the Endangered Species Act, 16 U.S.C. § 1531, et seq., and Clean Water Act, 33 U.S.C. § 1344, et seq., as well as other statutes administered by the Army Corps of Engineers. The most notable of these is the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., (“NEPA”).

Specifically, the EO cites to the regulations implementing NEPA for the authority to suspend or alter its provisions where “emergency circumstances make it necessary to take actions with significant environmental impacts without observing the regulations.” EO, Sec. 6. In that situation, agency heads are directed, within 30 days of the date of the Order, “to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.” EO, Sec. 6(b).

Seen in isolation, these exceptions may be considered reasonable, given the unusual economic circumstances created by the world reaction to Covid-19. However, when taken together with the Administration’s proposed changes in NEPA regulations in the 2017 Executive Order Enforcing The Regulatory Reform Agenda, these independent mandates substantially skew the application of NEPA toward the use of the less time consuming, but also less complete procedures such as categorical exclusions.

The bottom line is that the stage is being set for NEPA and other environmental protections to fall back to second place when they appear to conflict with the necessities of economic growth. Whether the constraints on NEPA will continue to be effective after the current crisis is over, will remain a question. Stay tuned for the answer.

Source: Aviation & Airport Development Law News