While we were distracted by a pandemic, a recession, and an uprising in the streets, Donald Trump attempted to upend decades of environmental law and policy with the stroke of his pen. In an executive order dated June 4, 2020, President Trump directed all federal agencies to use “emergency powers” to speed infrastructure work, specifically waiving or bypassing where possible the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Trump justified this order on the basis of the “economic emergency” existing in the country created by the national COVID-19 response. This shouldn’t surprise us – Trump has used every excuse to undermine environmental regulations from the start of his Administration, often favoring oil, gas and coal interests. But the scope of this executive order is audacious.
Bypassing the National Environmental Policy Act (NEPA) by fiat is a big deal. NEPA was one of the first laws ever written establishing a broad national framework for protecting the environment. It requires all branches of government to consider environmental effects prior to undertaking any major federal action. It does not mandate or forbid any particular action. NEPA applies to the construction of airports, buildings, military complexes, and highways, parkland purchases, and other federal activities.
Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies when planning these large projects. NEPA regulations already call for speedy production of evaluative work and concise analysis, as well as reductions in paperwork and red tape.
Trump’s executive order identifies the types of infrastructure projects to receive this expedited treatment. These are transportation infrastructure projects, such as highways, “civil works” projects within the purview of the Army Corps of Engineers, and “infrastructure, energy, environmental and natural resources” projects on federal land.
The President’s executive order claims that agencies have been given by regulation “appropriate flexibility . . . for complying with NEPA” in emergency situations by consulting with the Council on Environmental Quality about alternative arrangements. This is true as far as it goes. But the regulation Trump’s order relies on goes on to say that “agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” 40 CFR 1506.11. No mention is made in Trump’s order of any limitation on his power to waive the regulation, even though one clearly exists, and there is also no mention of a sunset for the emergency declaration.
Another target of Trump’s order is the Endangered Species Act (ESA). It requires federal agencies to consult with the Fish and Wildlife Service about the impact of proposed federal action upon endangered species. The ESA contains language permitting expedited consultations in emergencies. It does not authorize waiving or bypassing the consultation in emergency circumstances. Furthermore, “this provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” On its face, it does not apply to an economic emergency of the sort Trump has declared.
The final statutory target of Trump’s executive order is the Clean Water Act. The order directs the heads of all agencies to identify planned or potential actions the permitting for which may be subject to “emergency treatment” under law by the Army Corps of Engineers. These agency heads are directed to use the emergency procedures to “the fullest extent possible and consistent with the law to facilitate the Nation’s economic recovery”
Trump’s efforts to roll back environmental regulations have been well documented. Harvard Law School students have created a Regulatory Rollback Tracker, which provides information on each regulation affected by Trump’s campaign and the consequences of the rollback to the environment. The list of such rollbacks covers several pages.
Trump’s hostility to environmental regulations can be traced to the strong relationship he has developed with the energy industry, and particularly wealth energy industry donors, and also the Republican Party’s historic aversion to regulation. But now he has a compelling new reason – the threat of a recession to his reelection chances. The June 4 executive order is sure to come under legal fire from environmentalists, but Trump’s anxiety about his reelection may have created a fatal flaw in the order. While he declared the COVID-19 pandemic to be a national emergency, he did not declare the economic recession that followed the pandemic a national emergency. It is doubtful that he could have done so.
Some observers are not convinced this order will have a large negative impact on the environment. They point out that federal agencies already have emergency procedures to permit expedited review, but none of these permit ignoring the statutes or waiving an otherwise required review. If the agencies fail to follow their own procedures, their actions will be invalidated.
In the end, the June 4 executive order may simply be more flailing on Trump’s part in a manner that gets maximum heat and light but does little damage. Constitutionally, the President does not have the authority to overrule or temporarily nullify acts of Congress that have become law. It is a certainty, however, that Donald Trump is the least environmentally sensitive President in modern history. He will do whatever damage he can. He has to go.