State AGs Slam Trump Order To Skirt Environmental Reviews

By Clark Mindock
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Law360 (June 30, 2020, 5:24 PM EDT) -- Attorneys general for 15 states and the District of Columbia warned the Trump administration that an executive order to bypass vigorous environmental reviews for infrastructure projects would run afoul of emergency provisions in federal law, even considering the COVID-19 pandemic.

In a letter to the White House and various agency heads on Monday asking for the executive order to be removed, states including California, New York and Illinois said that a sputtering U.S. economy caused by the pandemic is not the kind of emergency that warrants sidestepping Clean Water Act, Endangered Species Act and National Environmental Policy Act environmental reviews.

The attorneys general said that provisions in those laws allow the government to skirt the reviews only when there is an imminent threat of danger — from an oil spill, natural disaster or imminent dam failure, for example — but not for an economic disaster without a geographic or temporal nexus.

"The state of the national economy, even a downturn related to an extended pandemic, is simply different in kind from such imminent emergency situations and cannot provide a lawful basis to broadly trigger the emergency provisions of NEPA, the ESA, and the CWA," they said.

The June 4 executive order instructs the heads of several government agencies to use "emergency authorities" to sidestep environmental laws and quickly approve major projects like highways and pipelines in an effort to jump-start the American economy, which has been hampered by the pandemic.

The move marked the latest deregulatory action taken by Trump, who has said it takes too long for agencies to approve major infrastructure projects, and that those delays hurt the economy. The executive order noted that in response to the pandemic the president declared a national emergency, which agencies should aggressively exploit.

The order instructed department heads to look for construction opportunities that could be pushed forward. The U.S. Department of Transportation, for example, was told to "expedite work on" projects like highways. The U.S. Department of Energy's and other projects on federal land should also be fast-tracked, the order said.

To accomplish those goals, the order relied on an alternative process for environmental consultation through the Council on Environmental Quality, which oversees NEPA implementation and makes environmental policy recommendations. The president said in the order that projects with "significant environmental impacts" should move forward "without observing the regulations" that can be bypassed in that manner.

The Monday letter was signed by the attorneys general of Maryland, Massachusetts, California, Colorado, Connecticut, Delaware, Illinois, Michigan, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, Wisconsin and the District of Columbia. Environmental groups have separately slammed the executive order as well, saying it puts endangered species at risk.

The states on Monday demanded that, if the executive order is not pulled, the agencies should be transparent about the projects being fast-tracked and that public input be welcomed.

They also argued that the pandemic serves to underscore the importance of environmental reviews to protect vulnerable communities, not that environmental reviews are less important during the crisis. They argued that COVID-19 has had the most significant impact on low-income communities and communities of color, and said studies have shown a correlation between pollution and greater susceptibility to coronavirus.

"Ordering agencies to expedite the environmental reviews for infrastructure projects, like oil and gas pipelines, natural gas compressor stations, and other polluting industrial facilities, which are commonly located in low-income and minority communities, ignores these realities and threatens to place additional burdens on those already hardest hit by the disease and disproportionately burdened by a damaged environment," the letter said.

The White House did not respond to a request for comment.

--Additional reporting by Michael Phillis and Juan Carlos Rodriguez. Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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