The Trump Administration recently issued two executive orders (EO) that focus on supporting economic recovery during the pandemic and recovery that could bring opportunity for environmental regulatory relief as well as risk. The first, Executive Order on Regulatory Relief to Support Economic Recovery (May 19, 2020), encourages continued deregulatory actions and enforcement discretion. The second, Executive Order on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (June 4, 2020), directs agencies to take all reasonable measures to speed infrastructure investments—such as expediting projects under the agency’s authority and using emergency measures to streamline environmental permitting.
The regulatory relief EO directs the agencies to “identify regulatory standards that may inhibit economic recovery” and to “consider whether to formulate, and make public, policies of enforcement discretion.” AGC supports the administration’s consistent focus on regulatory reform and the recent temporary enforcement discretion policy issued by the U.S. Environmental Protection Agency (U.S. EPA). However, nine states have recently filed suit against the temporary enforcement discretion policy. Construction firms will need to assess individually the risk of relying on U.S. EPA’s enforcement discretion as well as other enforcement relief measures that may be implemented due to the EO.
The infrastructure investment EO charges the agencies to identify the steps available to them to expedite work on projects and report back on what projects they have advanced. Whereas the EO does not remove obligations to meet requirements under the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), or the Clean Water Act (CWA); the EO charges the agencies to make full use of categorical exclusions and any emergency measures provided by the rules to expedite consultations and reviews. Environmental groups have already signaled they plan to sue the Administration over the EO. Further, it is likely that individual actions taken or expedited under the EO may be vulnerable to lawsuits.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.