Environmental protection laws still apply even under Trump’s national energy emergency − here’s why
- Written by Albert C. Lin, Professor of Law, University of California, Davis
In response to President Donald Trump’s declaration[1] of a “national energy emergency[2],” the U.S. Army Corps of Engineers recently listed hundreds of energy and infrastructure projects[3] that would be eligible for fast-track permitting.
The projects, which include oil pipelines, natural gas power plants and mining projects, were already under review. But the possibility of accelerated permitting raised concerns that without effective oversight, the projects might be allowed to alter or destroy hundreds of acres of wetlands[4] or risk contamination of drinking water sources.
Facing a backlash from environmental groups[5], the Corps removed the list and said it would follow up with a refined version.
But based on my experience as an environmental law professor[6] and former government lawyer, it’s not clear that the claimed emergency conditions warrant fast-tracking major projects with minimal environmental review or public scrutiny.
Dealing with emergencies under the law
To be sure, swift action is often necessary in an actual emergency to prevent loss of life or property damage. A levee breach during a storm may require emergency repairs, including placing rocks, dirt or sand to contain flooding. An advancing inferno may call for hasty felling of trees to create firebreaks. Or a bridge collapse may necessitate prompt debris removal and reconstruction.
Existing environmental laws and regulations largely account for such circumstances. For instance, the National Environmental Policy Act[8] generally requires federal agencies to analyze and publicly disclose the environmental impacts of their actions. In emergencies, however, agencies may comply with this requirement through “alternative arrangements[9]” such as a shortened public comment period[10] or a report on environmental impacts after the fact.
Similarly, the Endangered Species Act[11] bars federal actions that jeopardize protected species. But there are limited exceptions for emergency circumstances. When there is a federally declared disaster, for example, the Endangered Species Act allows the president to exempt projects to repair or replace public facilities when necessary to prevent the disaster from recurring. Examples of such projects include rebuilding a highway, bridge or railway[12].
President Trump’s declaration
President Trump’s declaration of a national energy emergency invokes the National Emergencies Act[13], which allows the president to follow emergency procedures that have been spelled out in other federal laws[14]. For instance, the Stafford Act enables federal support in an emergency[15] for services to protect lives, property, public health and safety, or to lessen the threat of a catastrophe.
But a declaration of an emergency does not allow a president to waive or ignore all other legal requirements. The declaration must specify the law or laws[16] whose emergency provisions are being activated.
In this situation, the declaration calls on the U.S. Army Corps of Engineers “to identify planned or potential actions[17] to facilitate the (n)ation’s energy supply that may be subject to emergency treatment” under the Corps’ permitting process. That process is governed by Section 404 of the Clean Water Act[18] and related statutes.
How the Corps’ regulations handle emergencies
Section 404 of the Clean Water Act requires project developers to apply to the Corps for a permit to discharge dredged material or other dirt or soil into “waters of the United States.” This term encompasses relatively permanent bodies of water as well as wetlands connected at the surface to those permanent waters[19]. Many construction projects, such as pipelines or housing developments, require a Section 404 permit because they cross water bodies or involve the fill of adjoining wetlands. The standard procedure for processing a permit application[20] includes public notice, a public comment period and preparation of environmental documentation, followed by the agency’s decision.
In emergency situations, the Corps’ regulations allow the use of “special procedures”[21] for processing applications – which the regulations do not specifically spell out. Instead, agency officials must tailor the process to the circumstances of each case. According to the Corps, in some situations an appropriate response to the emergency might include “a public notice to clarify permitting procedures[22] for dealing with the clean up and repair caused by these events.” Immediate approvals may be appropriate for work to prevent flood damage from an approaching storm, but inappropriate for reconstruction after that storm.
The “national energy emergency” declared by the president does not qualify as an emergency under the Corps’ regulations. Those regulations define an emergency[24] as “a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship” if the standard permitting procedures were followed.
Guidance from the Corps[25] suggests flooding and hurricanes as “example(s) of emergency situations caused by a natural disaster.” A further example includes “a catastrophic … failure … due to an external cause,” such as “a bridge collapse after being struck by a barge.”
Even if a situation qualifies as an emergency under the Corps’ regulations, the agency must make reasonable efforts to take comments from other agencies and the public[26].
Furthermore, neither these regulations nor the emergency declaration excuses the Corps from its duty to comply with other laws. Under the National Environmental Policy Act[27], the Corps would still have to analyze and publicly disclose the environmental impacts of federal actions, though it perhaps could use those “alternative arrangements” like a shortened comment period. And under the Endangered Species Act[28], the Corps still can’t harm endangered species unless a permitted project would repair or replace public facilities in a declared disaster area.
If the Corps’ promised revisions to the list of emergency projects look anything like the original version, expect a flood of lawsuits – which will seek to challenge any permits granted under emergency procedures.
References
- ^ declaration (theconversation.com)
- ^ national energy emergency (www.whitehouse.gov)
- ^ listed hundreds of energy and infrastructure projects (www.reuters.com)
- ^ alter or destroy hundreds of acres of wetlands (environmentalintegrity.org)
- ^ backlash from environmental groups (www.eenews.net)
- ^ environmental law professor (law.ucdavis.edu)
- ^ Citizen of the Planet/UCG/Universal Images Group via Getty Images (www.gettyimages.com)
- ^ National Environmental Policy Act (www.law.cornell.edu)
- ^ alternative arrangements (www.ecfr.gov)
- ^ shortened public comment period (ceq.doe.gov)
- ^ Endangered Species Act (www.law.cornell.edu)
- ^ rebuilding a highway, bridge or railway (crsreports.congress.gov)
- ^ National Emergencies Act (www.law.cornell.edu)
- ^ spelled out in other federal laws (www.justsecurity.org)
- ^ the Stafford Act enables federal support in an emergency (www.fema.gov)
- ^ specify the law or laws (www.law.cornell.edu)
- ^ to identify planned or potential actions (www.whitehouse.gov)
- ^ Section 404 of the Clean Water Act (www.law.cornell.edu)
- ^ as well as wetlands connected at the surface to those permanent waters (www.supremecourt.gov)
- ^ standard procedure for processing a permit application (www.ecfr.gov)
- ^ regulations allow the use of “special procedures” (www.ecfr.gov)
- ^ a public notice to clarify permitting procedures (www.swf.usace.army.mil)
- ^ AP Photo/Mark Schiefelbein (newsroom.ap.org)
- ^ define an emergency (www.ecfr.gov)
- ^ Guidance from the Corps (www.swf.usace.army.mil)
- ^ take comments from other agencies and the public (www.ecfr.gov)
- ^ National Environmental Policy Act (www.epa.gov)
- ^ Endangered Species Act (www.fws.gov)
Authors: Albert C. Lin, Professor of Law, University of California, Davis
