Bloomberg recently contacted our colleague Larry Liebesman to ask about the Trump Administration’s energy emergency declaration on Clean Water Act implementation and the Endangered Species Act. Before joining us in 2015, Larry was an environmental litigator at the US Justice Department and frequently advised on cases involving these issues.
Specifically, the new order outlines emergency regulations and nationwide permits under the CWA. Those include directives for agencies to identify actions to facilitate energy development that may be subject to emergency treatment and use emergency permitting provisions from the US Army Corps of Engineers (USACE) to facilitate U.S. energy production.
What follows are summaries of what Larry shared with Bloomberg:
Procedure changes
The national energy emergency Executive Order does not circumvent specific procedures and authorities of the Army Corps of Engineers and Department of the Interior to grant exemptions from the normal environmental review procedures. Corps regulation (33 CFR 325.2 (e) (4) defines an emergency as a situation “which would result in an unacceptable hazard to life, a significant loss of property or an immediate or unforeseen and significant [economic] hardship.”
The Corps District Engineer would then have to issue alternative procedures with an explanation. This would result in a faster review and approval process with fewer conditions due to the emergency. This would also apply to Corps’ Nationwide Permits (NWPs) such as NWP 12 for linear projects.
Exemptions for full ESA Section 7 consultation would require a finding of a major natural disaster for projects needed to repair or replace public facilities:
If the Secretary of Interior determines that the exemption is necessary to reduce loss of human life, or
If the Secretary finds that an exemption is necessary for national security or
If ESA compliance would violate an international treaty.
Given ESA’s strong mandate to protect listed species, the Act created the Endangered Species Committee of federal agencies to review and approve exemptions for national security.
NEPA compliance
The Council on Environmental Quality’s (CEQ) NEPA regulations’ emergency procedures require agencies to develop alternative procedures for NEPA compliance with CEQ review and approval and define emergencies as “natural disasters, catastrophic wildfires, threats to species and their habitat, economic crisis, infectious disease outbreaks, potential dam failures and insect infestations.” CEQ guidance legally cannot exempt any activities from NEPA unless they are covered by agency categorical exclusions approved by CEQ.
Legal risks
The Administration’s Executive Order is simply a statement of policy and does not carry the force of law. Rather, the EO must provide specific authority in the law. The EO cites the National Emergencies Act (50 USC 1631): “When the President declares a national emergency, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act.”
The EO also cites Title 3, Section 301, which generally empowers the President to designate and empower any department or agency to carry out “any function which is vested in the president by law." This EO does provide broad economic and national security reasons without much detail so it could be challenged as not specific enough in the law to authorize the agency actions outlined in the order. However, a court may find that the EO itself is only a statement of policy and cannot be challenged on its face until legal justifications are fleshed out.
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