On June 5, 2020, Fred Wagner was quoted in Inside EPA on the fear of litigation from environmental groups dampening industry response to President Trump’s new executive order (EO) directing federal agencies to waive certain environmental reviews.
According to the article, Trump’s June 4 EO says that in order to combat the “economic emergency” created by the COVID-19 pandemic, he is directing the Environmental Protection Agency (EPA) and other agencies to “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."
Wagner told Inside EPA, “It’s going to take a bit of gumption "for any project applicant that could potentially take advantage of a waiver “to say yes, knowing they are guaranteeing challenges to application of the executive order in the context of any project."
The order specifically addresses emergency exemptions for National Environmental Policy Act (NEPA) reviews, consultations mandated by the Endangered Species Act (ESA), and nationwide permits under the Clean Water Act (CWA), but instructs agencies to rely on their “lawful emergency authorities,” which are generally limited to immediate threats to public life or important natural resources, not economic issues.
Wagner says the White House Council on Environmental Quality (CEQ), which administers NEPA, has been loath to use its exemption authority. He points to a CEQ list of projects that have proceeded under “alternative arrangements for emergencies,” noting that it is limited to 47 projects between 1980 and mid-2019, an average of less than one per year.
Additionally, he notes CEQ’s policy statement on emergencies under NEPA is "fairly limiting" and "makes it pretty clear [emergencies] are designed to be the exception to the rule . . . and the way the executive order is written, it does not give that impression."