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June 5, 2020Client Alert

New Executive Order To Expedite Infrastructure Investments by President

On June 4, President Trump signed an executive order directing agencies to look for ways to speed up building of highways and other major projects by scaling back environmental reviews, invoking special powers he has under the coronavirus emergency. The White House contends that the executive order will help speed the nation’s recovery after the coronavirus pandemic.

"The need for continued progress in this streamlining effort is all the more acute now, due to the ongoing economic crisis. Unnecessary regulatory delays will deny our citizens opportunities for jobs and economic security, keeping millions of Americans out of work and hindering our economic recovery from the national emergency." said President Trump in the executive order.

The executive order would direct federal agencies to pursue emergency workarounds from bedrock environmental laws, such as the National Environmental Policy Act and the Endangered Species Act, to hasten completion of various infrastructure projects.

The executive order states that "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."

Declaring an economic emergency lets the president invoke a section of federal law allowing “action with significant environmental impact” without observing normal requirements imposed by laws such as the Endangered Species Act and the National Environmental Policy Act. These laws require agencies to solicit public input on proposed projects and analyze in detail how federal decisions could harm the environment.

It is unclear how the directive will affect individual projects, especially since developers are often wary of legal challenges they could face from environmental or public interest groups. Jason Bordoff, founding director of Columbia University’s Center on Global Energy Policy, said in an email that “companies would be reluctant to rely on such an executive order,” knowing they would later have to prove that they were operating in an emergency.

Separately Thursday, the Environmental Protection Agency formally proposed overhauling how the agency evaluates new rules on air pollutants, a move critics say will make it tougher to enact limits on dangerous and climate-changing emissions in the future.

The separate EPA proposal, now going up for the legally required public comment period before any adoption, would require cost-benefit analyses for every major new regulation under the Clean Air Act. It would also tighten consideration, in weighing any new pollutant limits, of broader benefits to clean air that would come from regulating the primary targeted pollutant.

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