Vol. 50-1 Washington Update

By Jacob Arechiga and Kylan MacLeod

Washington Updates

Executive Order to Accelerate the Nation’s Economic Recovery by Expediting Infrastructure Investments

Introduction

On July 4, 2020, President Trump issued the Executive Order entitled Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“EO”).^[1] The EO’s stated intent is to streamline regulations, thus limiting regulatory delays, in response to the economic crisis resulting from the COVID-19 pandemic.^[2] The EO instructs federal agencies to use emergency powers to expedite project approvals, directing they should: (1) use their emergency authority and statutes’ emergency provisions to expedite projects; (2) provide a report listing expedited projects; and (3) provide status updates with further reports due every thirty days.^[3]

This article discusses the content of the EO, and its requirements on agencies to encourage accelerated infrastructure development. Part I discusses the EO and the requirements that agencies must meet. Part II discusses the effects of the EO on industry and the environment. Part III discusses the future potential impact of the EO.

PART I: REQUIREMENTS OF THE EO

The EO instructs various federal agencies to exercise emergency authority provisions to expedite decision making, providing instructions that agencies should follow as well as reporting requirements that the agencies must undertake.^[4]

In Sections 3–5, the EO designates steps that specific executive departments must take to expedite project development.^[5] Listed are the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture.[6] Each department must “expedite work on, and completion of, all authorized and appropriated [projects] that are within the authority of the Secretaries.”^[7] These projects include “highway and other infrastructure projects,” “civil works projects,” “and infrastructure, energy, environmental, and all natural resources projects,” depending on the Secretary’s authority.^[8]

The EO requires the Secretaries to provide reports. Each Secretary must provide a “summary report[] listing all such projects that have been expedited . . . to the [Office of Management and Budget (OMB)] Director, the Assistant to the President for Economic Policy, and the Chairman of [the Council of Environmental Quality (CEQ)]” within thirty days of the EO.^[9] Within thirty days of the first report, the Secretaries must “provide a status report to the [same officials] that shall list any additions or other changes.”^[10] Reports are continuously required “at least every thirty days for the duration of the national emergency.”^[11]

In Sections 6–8, the EO instructs agency heads to apply various environmental statutes’ emergency provisions.^[12] The EO specifically addresses the National Environmental Policy Act’s (NEPA) emergency regulations and emergency procedures, the Endangered Species Act’s (ESA) emergency consultation, and the Clean Water Act’s (CWA) and other statutes administered by the U.S. Army Corp of Engineers’ (the Corps) emergency regulations and nationwide permits.^[13] All agencies must “identify planned or potential actions to facilitate the Nation’s economic recovery that may be subject to the” NEPA and ESA emergency provisions, with the Corps also being subject to additional requirements under the CWA.^[14]  The agencies are required to provide summary status reports on thirty-day intervals, outlining planned or potential actions to various cabinet secretaries and other individuals exerting oversight.^[15]

The EO’s Section 9 requires agencies to “review all statutes, regulations, and guidance documents that may provide for emergency or expedited treatment . . . with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resource matters.”^[16] After, agencies must “identify planned or potential actions, including actions to facilitate the Nation’s economic recovery, that may be subject to emergency or expedited treatment.”^[17] These actions must be listed in a summary report “to the OMB Director, the Assistant to the President for Economic Policy, and the Chairman of CEQ.”^[18] Updated reports are also required every 30 days under this section.^[19]

PART II: PURPOSES AND EFFECTS OF THE EO

The Trump Administration has made several efforts to expedite the process of approving infrastructure projects. As stated in the EO, it is another step towards “reforming and streamlining [the approval process which the Administration refers to as] an outdated regulatory system that . . . [has] hindered American infrastructure investments.”^[20] Infrastructure permitting often “takes years of planning and construction.” ^[21] The EO’s goal is to accelerate this time-consuming process and provide project developers a means to avoid this lengthy process.^[22]

It is still unclear if, how, and to what extent, agencies will implement these expedited procedures and whether project developers will want such expedited review and approval of its projects. Some are concerned that the EO could not survive a legal challenge, with commentators noting that “the legal support for the . . . EO appears dubious and likely to be challenged.”^[23] As such, projects accelerated under the EO may “be subject to increased scrutiny and heightened litigation risk from third parties,”^[24] as courts have applied the relevant emergency powers narrowly in the past.^[25] The judiciary has limited the use of these powers to projects responding to emergencies that posed an “imminent hazard to human health and the environment.”^[26] While certain developers are wary of possible legal challenges, some projects are moving forward under the EO, including an oil-drilling project in Alaska and a private spaceport in Florida.^[27]

Environmental organizations have voiced their own concerns, arguing the EO will allow projects to avoid environmental regulations and that expedited approval will harm the environment.[28] Gina McCarthy, former EPA Administrator, and the current President and CEO of the Natural Resources Defense Council, stated: “Abusing emergency powers to deep-six necessary environmental reviews is utterly senseless. . . . Getting rid of them will hit those who live closest to polluting facilities and highways the hardest.”^[29] The Center for Biological Diversity also expressed its concerns in a letter to the Trump Administration.^[30] The Center said that it would seek litigation if the Administration did not revoke the order.^[31] Litigation that may emerge from the Center and other organizations is likely to slow projects that seek to be accelerated. It remains to be seen whether the costs and time lost in litigation outweigh the EO’s benefits.

PART III: THE FUTURE OF THE EO

The November 2020 Presidential election probably determined the EO’s future. The president has the power to revoke Executive orders. The President can revoke Executive Orders alone.^[32] Because former Vice President Joe Biden won the election, he is likely to revoke the order and may even impose more stringent standards on expedited projects in the future. A shifting standard poses an additional complication for projects that hope to benefit from the EO.

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Austin, Texas office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Kylan MacLeod is a second-year student at The University of Texas School of Law and is a Staff Editor of the Texas Environmental Law Journal.