Source: Environmental Law Institute – Regulatory Reform
in the Trump Era
ACTORS: President, Council on Environmental Quality, Department Secretaries, Congress
The Trump Administration may seek to fast-track infrastructure or other projects that ordinarily would undergo extensive environmental and permitting review. Federal agencies have authority to approve or reject construction projects that cross international boundaries, occupy federal lands and waters, or require federal permits or easements. These approval activities can be advanced either by the executive branch or by Congress, but executive actions must follow procedures set out in current laws.
Process. Infrastructure Projects. On January 24, 2017, the President issued an Executive Order entitled “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects.” The Order directs the Chair of the Council on Environmental Quality (CEQ) (position currently operating with an acting career official) to determine, within 30 days after a request from any state governor or the head of a federal agency, whether a proposed infrastructure project is a “high priority” project, taking into account its importance to the general welfare, value to the nation, environmental benefits, and any other factor the Chair deems relevant. For any project so designated, the Chair must coordinate with the “relevant” federal agency head to establish expedited procedures and deadlines for completion of environmental reviews and approvals.
Federal agencies then must give highest priority to meeting the deadlines, and must explain in writing any failures to meet deadlines and steps to complete the required reviews. The Order must be implemented “consistent with applicable law and subject to the availability of appropriations.”
Presidentially-Preferred Projects. The President can direct executive branch agencies to carry out review and approval procedures expeditiously, but cannot waive or supersede federal laws and regulations, unless given the authority to do so by Congress. On January 24, the President issued two memoranda advancing processes for approving the Keystone XL Pipeline (KXL) and Dakota Access Pipeline (DAPL). …
Congressional Actions. Congress can, by law, add or remove environmental review and permitting requirements for individual projects or for entire categories of projects. Congress can also suspend the application of environmental laws, or deem them satisfied, as it did in the many appropriations “riders” affecting forest activities in the Pacific Northwest in the 1990s. Congress can also empower federal agencies to waive federal laws under some circumstances, as it did in 1996 in authorizing construction of fences along the U.S.-Mexico border. The 2005 REAL ID Act authorized the Secretary of Homeland Security to waive numerous environmental and regulatory laws to support border activities (including all EPA-administered pollution control laws, and all of the public land laws administered by the Department of Interior and the Forest Service); DHS used this latter authority in 2008 to waive more than 30 laws.
Congress can also pass legislation requiring rapid environmental reviews, including the setting of specific timetables, as it did in the Fixing America’s Surface Transportation (FAST) Act signed into law by President Obama in December 2015. Congress can also direct that certain actions be made “categorical exclusions” under NEPA, exempting them from the requirement to undergo an environmental impact statement or environmental assessment; it has used this approach in the past for certain classes of transportation projects, logging operations, and other activities. Congressional actions would be subject to regular congressional procedures dealing with legislation, appropriations, and oversight. …
Opportunities for Public Engagement. Interested parties will have various opportunities to engage agencies and Congress about the possible administrative actions, ranging from direct communication, to participation in administrative notice-and-comment procedures, to litigation. As to the infrastructure Executive Order, some questions remain that may be of interest to stakeholders, including whether the Order could be used to advance renewable energy or other environmentally-friendly infrastructure projects, and whether public-interest criteria will factor into what constitutes a “high priority” under the Executive Order. These may the subject of further public engagement with the White House.