President Trump signed a new executive order yesterday evening purporting to use the declared national emergency relating to the coronavirus to activate legal authorities that would allow the expedition of federal environmental paperwork for infrastructure projects.

The announcement that the order had been signed was quickly praised by Congressional Republicans and, almost as quickly, condemned by Congressional Democrats. But how much power will the order really have?

Much of the new order seems redundant or innocuous. Section 1 describes the history of the coronavirus emergency, reiterates White House talking points on the need for regulatory reform, and closes with the promise that “I will continue to use existing legal authorities to respond to the full dimensions of the national emergency and its economic consequences.  These authorities include statutes and regulations that allow for expedited government decision making in exigent circumstances.”

Section 2 then sets forth a general policy, which also seems innocuous: “Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  As set forth in this order, agencies should take all reasonable measures to speed infrastructure investments and to speed other actions in addition to such investments that will strengthen the economy and return Americans to work, while providing appropriate protection for public health and safety, natural resources, and the environment, as required by law.”

Section 3 then orders the Transportation Secretary to “use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated highway and other infrastructure projects that are within the authority of the Secretary to perform or to advance.” Sections 4 and 5 give the same directives to the Assistant Secretary of the Army for Civil Works (for Corps of Engineers water resources projects) and to the Secretaries of Agriculture, Interior, and Defense (for projects on federal lands or military bases).  Functionally speaking, all of those orders could have been given by White House staff to agencies via telephone and would have the same legal effect as an executive order.

It isn’t until section 6 that things get interesting – that section notes that the Council on Environmental Quality (which is within the Executive Office of the President), has regulatory flexibility that is “expressly authorized in CEQ’s regulations, contained in title 40, Code of Federal Regulations, that implement the procedural provisions of [the National Environmental Policy Act] (the “NEPA regulations”), which were first issued in 1978.  These regulations provide that when emergency circumstances make it necessary to take actions with significant environmental impacts without observing the regulations, agencies may consult with CEQ to make alternative arrangements to take such actions.”

The order does not give a specific section citation, but we think the provision referenced is 40 CFR §1506.11:

1506.11. Emergencies.

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. 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.

The definitions section of 40 CFR does not define “emergency circumstances” or “immediate impact.”

Section 6 of the new order goes on to direct all agency heads to identify “planned or potential actions to facilitate the Nation’s economic recovery that:

1. “may be subject to emergency treatment as alternative arrangements pursuant to CEQ’s NEPA regulations and agencies’ own NEPA procedures;
2. “may be subject to statutory exemptions from NEPA;
3. “may be subject to the categorical exclusions that agencies have included in their NEPA procedures pursuant to the NEPA regulations;
4. “may be covered by already completed NEPA analyses that obviate the need for new analyses; or
5. “may otherwise use concise and focused NEPA environmental analyses”

Section 7 of the order then gives a directive similar to the one given to CEQ to agency heads with regards to a similar “emergency” section of the regulations implementing the Endangered Species Act (50 CFR §402.05), and section 8 of the order directs the Corps of Engineers to find such emergency authorities in its “regulations and nationwide permits” pursuant to section 404 of the Clean Water Act, section 10 of the Rivers and Harbors Act, and section 103 of the Marine Protection Research and Sanctuaries Act. Then section 9 orders all other agencies to comb through their existing laws and regulations to see if they can find any provisions that “provide for emergency or expedited treatment (including waivers, exemptions, or other streamlining) with regard to agency actions pertinent to infrastructure, energy, environmental, or natural resources matters.”

The NEPA emergency authority at CEQ specifically provides that “Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency.” And the Endangered Species Act emergency authority limits itself to “situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” In both instances, attempts to use the coronavirus as a justification to provide sweeping regulatory relief would almost certainly get tied up in court for some time, and avoiding lengthy legal entanglements is supposed to be the whole point of Trump’s regulatory reforms, anyway.