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NACD Examines Executive Order on Bolstering Economic Recovery in the COVID-19 Era

By Mary Scott

On June 4, President Trump signed a Presidential Executive Order (EO), titled “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.” The EO streamlines infrastructure investments by instructing agencies, including executive departments, to use “emergency authorities” for swift implementation of projects. According to the EO, this action is aimed to bolster economic recovery in light of the COVID-19 (coronavirus) pandemic.

The purpose of the EO is to streamline infrastructure investments during a time of crisis in America, and agencies and executive departments, “while providing appropriate protection for public health and safety, natural resources, and the environment, as required by law.” Emergency measures on several environmental laws are addressed, including guidance for emergency consultations on projects that have connections to the Endangered Species Act (ESA), National Environmental Policy Act (NEPA) and the Clean Water Act (CWA).

While this EO is primarily directed at expediting infrastructure projects through the Department of Transportation (DOT), an array of other agency projects could be included. Civil works projects conducted by the Army Corps of Engineers (ACE) and projects taking place on federal lands are addressed in the document.

Key sections:

National Environmental Policy Act

In accordance with this EO, the Council of Environmental Quality (CEQ) will ensure the appropriate flexibility is provided for agencies to comply with NEPA. In times of emergency circumstances and when it is necessary to take actions with significant environmental impacts, NEPA regulations allow for agencies to consult with CEQ to make alternative arrangements, instead of following the traditional NEPA process. This applies to “not only natural disasters and threats to the national defense, but also threats to human and animal health, energy security, agriculture and farmers, and employment and economic prosperity.”

Within 30 days of issuing this EO, all agency leadership will identify planned or potential projects that would help strengthen the U.S. economy and provide a summary report. The Chairman of CEQ is required to be readily available for consultation for agencies wishing to use this action to move their projects forward. Additionally, projects are subject to the following, as outlined in the EO:

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

Endangered Species Act (ESA) Emergency Consultation Regulations

Within 30 days, the leadership of all agencies will identify any planned and potential actions and provide a report with any projects pursuant to the Endangered Species Act (ESA). The DOI Secretary will ensure the Fish and Wildlife Service (FWS) Secretary, or authorized representative, is able to consult with agencies concerning the application of the ESA’s emergency regulation in a timely manner.

Clean Water Act

Within 30 days of enactment of this EO, agency leadership, including that of the Secretary of the Army, will identify planned or potential actions that will help boost the U.S. economy during this time of crisis. Eligible projects “may be subject to emergency pursuant to the regulations and nationwide permits promulgated by the Army Corps of Engineers, or jointly by the Corps and the Environmental Protection Agency (EPA), pursuant to section 404 of the Clean Water Act, 33 U.S.C. 1344, section 10 of the Rivers and Harbors Act of March 3, 1899, 33 U.S.C. 403, and section 103 of the Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. 1413.”

The Secretary of the Army will be able to consult with agencies that have projects relating to these matters. The EPA Administrator will also remain available to coordinate with the Secretary of the Army on related matters.

Army Corps of Engineers

Agency leadership will develop a report identifying expedited civil works projects no later than 30 days of the issued EO.

Projects on Federal Lands

Federal lands are defined as “any land or interests in land owned by the United States, including leasehold interests held by the United States, except Indian trust land.” The Department of Defense (DOD), United States Department of Agriculture (USDA) and Department of Interior (DOI) secretaries will use the relevant “emergency authorities” to expedite projects on federal lands. These measures apply to infrastructure, energy, environmental and natural resource projects.

Agency leadership will be required to develop a report identifying expedited projects on federal lands no later than 30 days after the issued EO.

The full EO can be found here.

This EO is not related to the CEQ’s earlier proposal to streamline NEPA earlier this year. NACD submitted comments on CEQ’s NEPA proposal in May and will continue to monitor agencies’ response to this EO.

Mary Scott is NACD’s natural resource policy specialist and can be reached at mary-scott[at]nacdnet.org.

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