It was initially reported that President Trump’s EO would waive the need to comply with federal environmental regulations. However, that is not the case, nor is it possible to simply waive laws and regulations with an EO. Rather, the EO directs agencies to utilize existing authorities, including existing emergency procedures available within the bounds of the National Environmental Policy Act (NEPA) and other federal regulations, to expedite infrastructure and other investments to strengthen the economic recovery. The EO directs federal agencies to utilize these existing emergency procedures in a more expansive manner than in the past to further the Administration’s agenda.
What do the existing NEPA regulations include?
The NEPA regulations provide for emergency procedures when necessary to take actions with significant environmental impacts without observing the requirements in regulations (40 CFR §1506.11). The Council on Environmental Quality (CEQ), which has issued guidance on emergency action, recommends the following steps in relation to emergency actions under NEPA:
- Do not delay immediate actions necessary to secure the lives and safety of citizens or to protect valuable resources, consult with CEQ as soon as feasible, and coordinate communications with NEPA contacts.
- Determine if the proposed action triggers NEPA or is statutorily exempt from NEPA (certain FEMA response actions under the Stafford Act are exempt).
a) If the action triggers the NEPA, review if there is a categorical exclusion (CE) that includes that type of activity and apply the CE, unless there are extraordinary circumstances that indicate using the CE is not appropriate.
b) If a CE does not apply, and the potential impacts of the action are not expected to be “significant” environmental impacts, then prepare a focused, concise Environmental Assessment (EA) as described in CEQ guidance.
c) If the action is expected to have “significant” environmental impacts, determine whether it is covered by an existing NEPA analysis.
d) If the action is not covered by an existing NEPA analysis, then the agency should consult with CEQ to determine whether “alternative arrangements” can take the place of an Environmental Impact Statement (EIS). Alternative arrangements are only appropriate for an action expected to have significant environmental impacts and would otherwise require the preparation of an EIS.
CEQ has approved alternative arrangements in emergency situations for actions to address the immediate effects of an emergency. Between 1980 and 2019, 47 federal actions have moved forward under alternative arrangements. Most of the alternative arrangements were related to immediate actions to address emergency contingencies, such as:
- Building an evacuation route on the island of Hawaii because the existing routes would be covered by lava within 45 days.
- Reconstructing levees damaged by Hurricane Katrina.
- Responding to the Deepwater Horizon oil spill.
- Avoiding threatening dam failures.
- Capturing wild condors for a breeding program to avoid imminent extinction.
Some of the actions using alternative arrangements had economic considerations driving the emergency, such as spraying a pesticide to prevent economic losses in the agricultural industry or issuing a federal loan to acquire property for a General Motors automobile factory in Detroit to help address a local economic crisis that had been declared an emergency by the governor of Michigan.
In addition to the CEQ NEPA implementing regulations, each agency has NEPA procedures which supplement the CEQ regulations. In some cases, agency regulations go further than the NEPA regulations when defining an emergency. When reviewing federal agency NEPA regulations, the types of emergencies traditionally covered by emergency provisions are items such as:
- Damage related to a natural disaster (e.g., flood, hurricane, tidal wave, earthquake, landslide, etc.).
- Catastrophic or imminent failure of a manmade facility/structure.
For example, the Department of the Interior (DOI) has specific emergency provisions at 46 CFR §46.150 that include consulting with CEQ about alternative arrangements for actions to address immediate impacts due to an emergency that would do harm to life, property, or natural, cultural, or historic resources. These provisions, however, still require the DOI to consider environmental consequences and mitigate them as practical.
For NEPA, the “emergencies” covered by these provisions are physical catastrophes that require a short-term immediate response. Environmental compliance is still required for actions taken to address the emergency once the immediate threat has been addressed. CEQ’s Emergencies and the National Environmental Policy Act specifically states, “The alternative arrangements developed by the action agency will address the actions necessary to respond immediately, to the impacts of an emergency. The long-term disaster response and the recovery actions remain subject to the regular NEPA process.”
Emergency provision: the Endangered Species Act
The Endangered Species Act (ESA) emergency consultation provision, found at 50 CFR §402.05, is similar to the NEPA provisions in that it allows for alternative procedures when consultation needs to be expedited because of an emergency circumstance.
The ESA provision “applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” It goes on to state that, “Formal consultation shall be initiated as soon as practicable after the emergency is under control.” Therefore, the applicability of ESA emergency provisions is for the immediate actions needed to address an emergency—not what extends beyond the immediate response. Requirements under the ESA are not waived because of the emergency.
The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) procedures require consultation with agencies during the emergency response, agency recommendations for minimizing impacts to protected species and habitat, and completion of the consultation once the emergency is under control.
Emergency provision: the Clean Water Act
In Section 4040 of the Clean Water Act (CWA), emergency procedures found at 33 CFR §325.2(e)(4) allow the U.S. Army Corps of Engineers (Corps) to approve special processing procedures in emergency situations.
Here, an “emergency” is defined as a situation that would result in an unacceptable hazard to life; a significant loss of property; or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures. Even in an emergency, the regulations require reasonable efforts be made to receive comments from interested federal, state, and local agencies, as well as the affected public. Also, notice of any special procedures authorized and their rationale is to be appropriately published as soon as practicable.
Most Corps Districts (CDs) have established regional general permits for streamlining CWA Section 404 and Section 10 of the Rivers and Harbors Act, which authorizes projects that qualify as emergency actions. Therefore, consultation with the relevant CD is highly recommended before proceeding.
In addition, pursuant to 33 CFR 323.4(a)(2), discharges not requiring permits; emergency maintenance of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches; and transportation structures may qualify for an exemption to CWA Section 404 authorization, provided the project proponent complies with all other applicable federal laws and regulations.
Emergency provision: the National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA) requires consultation with the State Historic Preservation Office (SHPO) concerning the effects of federal undertakings on historic properties.
Section 106 regulations reference developing agency procedures in advance of an emergency through the adoption of programmatic agreements in consultation with the Advisory Council on Historic Preservation (ACHP), SHPO, and Indian tribe or Native Hawaiian organization representatives as appropriate (see 36 CFR §800.12[a]). If such prior procedures or agreements are not in place, the regulations require notifying the ACHP, SHPO, and Indian tribe or Native Hawaiian organization representatives as appropriate, and providing these agencies/groups an opportunity to provide comment prior to an undertaking.
The regulations only apply to undertakings within 30 days after the emergency declaration, but the federal lead agency can apply for an extension from the ACHP.
Other federal, state, and local regulations
The June 4 EO directs the review of all federal requirements. Other statutes may have different emergency provisions (or may have none). Agencies proposing actions that require compliance with other federal statutes will need to review the emergency provisions (if any) for other federal statutes and implement regulations to see what constitutes an emergency, whether an emergency provision applies in this instance, and, if so, what alternative procedures must be followed.
Federal emergency provisions do not address state laws and regulations (such as the California Environmental Quality Act) or any local requirements. State and local environmental requirements may or may not have emergency provisions; if so, they are likely only applicable by state emergency declarations. Projects subject to state or local environmental laws and regulations will need to comply with these requirements in addition to any federal rules and regulations that apply.
How to consider potential emergency provisions for a federal action
How should you consider whether emergency provisions may apply to—and should be used for—an action? Consult with federal agency staff, potentially the CEQ, and legal counsel and follow the below five-step process:
- Does the federal action qualify as an emergency? Not all actions may be able to use all emergency provisions. Some emergency provisions define an emergency narrowly. Actions should clearly fit within the applicable emergency definitions provided either in existing statute or regulations.
- What do emergency provisions allow and require? Federal emergency provisions for environmental regulations usually require some level of environmental compliance, though alternative arrangements can include full compliance “after the fact” and may include public and agency coordination. For example, the use of alternative arrangements under NEPA usually requires consultation with the CEQ. Identify the requirements that still must be met, even if an action qualifies under the emergency provisions.
- What other compliance requirements do not have emergency provisions? Not all federal environmental regulations have an emergency provision, and state and local regulations are not affected by federal requirements. Identify environmental requirements unaffected by emergency provisions and plan for their compliance.
- What advantages or risks might result from using emergency provisions? After review of the above, you should evaluate the potential benefits and risks that could be experienced from applying emergency provisions. The COVID-19 emergency may not last for the duration of the action or project, and a change in administration could result in a change in the EO. Federal emergency provisions might streamline some federal requirements, but an unaffected state or local requirement may eliminate the schedule gains. There may be controversy in applying one or more emergency provisions to a high-profile action, and this may have an associated litigation risk. Agency staff and project proponents should consider the benefits and risks to individual actions or projects when assessing the best path forward.
- What other streamlining options might help? Separate from emergency provisions, federal agencies can always use categorical exclusions and findings of no significant impact (FONSI) where applicable and appropriate to a federal action to help streamline the environmental process. In addition, Executive Order 13807 and the One Federal Decision (OFD) framework provide avenues for accelerating the timeframe for environmental review and approvals.
Clarification through litigation
The June 4 EO does not waive the need to comply with NEPA or other environmental regulations. It points agencies to existing emergency provisions available in some—but not all—existing regulations and encourages them to use it to assist with the economic recovery related to the COVID-19 pandemic. The June 4 EO requires federal agencies to identify what actions they have taken or intend to take, which actions will be expedited, and to provide status reports every 30 days for the duration of the national emergency.
Following the June 4 EO, some have questioned whether an economic downturn would qualify under the emergency provisions noted above. Furthermore, 40 CFR §1506.11 indicates that departures from the normal NEPA process are only permissible for those “actions necessary to control the immediate impacts of the emergency.” Assuming it is determined that an economic downturn or pandemic constitutes an emergency under 1506.11, the next question will be what actions can be covered under the emergency and when “immediate impacts” have been addressed. These questions will likely be clarified through litigation, which is almost certain to result in response to this particular EO.
ICF has worked with federal agencies and project proponents for 50 years to comply with federal and state environmental regulations on small and large actions and projects under a diversity of circumstances—including when responding to emergencies. When you need help navigating environmental compliance in trying times, ICF is here to help.