When #MAGA Met NEPA: An Executive Order Without Style, Substance or Sting

On January 24th, President Trump declared virtually nothing in his order regarding NEPA.

On January 24th, President Trump issued one of his notorious executive orders (EOs)—this one to much less fanfare than some of the others.  It was brief.  It was surprisingly unnoticed by the media.  Yet it took aim at the National Environmental Policy Act (NEPA) so we here at the Lab were keen to take a look.  After inspection, we’ve come to the sober conclusion that it’s literally all show and no dough.  This post carves the January 24th EO up into pieces: first its trite statement of facts; second its so-called “action forcing” provisions; and third its (rather maximalist) qualifications.

1. Fact or Fiction: Infrastructure Spending Should Trump Other Values {?}

As we’ve noted here before, NEPA is a convenient scapegoat for those whose infrastructure projects have become bogged down in process.  The EO in § 1 asserts that

[i]nfrastructure investment strengthens our economic platform, makes America more competitive, creates millions of jobs, increases wages for American workers, and reduces the costs of goods and services for American families and consumers. Too often, infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures. These delays have increased project costs and blocked the American people from the full benefits of increased infrastructure investments, which are important to allowing Americans to compete and win on the world economic stage.

This is obviously a string of bromides, but taking one seriously for a moment—that “routine” and “excessive” delays from “agency processes and procedures” have blocked the American people from benefits of increased infrastructure investments—one finds little more than tired rhetoric.  Not all infrastructure projects are created equal, after all. As a great deal of empirical work has shown, the employment effects from some projects are much greater than for others (even holding costs constant).  And not every job is the same, either.  Finding spending that maximizes positive employment effects, minimizes environmental harms, and increases production and consumption in the wider economy should be a consensus goal—regardless of who is in the White House.  Alas, we live in strange times.

And the January 24 EO would’ve been more be newsworthy if it hadn’t been for a stream of prior actions—three of which President Obama ordered unilaterally—where permitting was sped up and “infrastructure” moved into a higher gear notwithstanding the prevailing tendencies toward gridlock.  The first, Obama’s “Federal Infrastructure Permitting Dashboard,” was aimed at tracking a set of projects.  The second, the establishment of a “steering committee” to oversee completion of nationally and regionally-significant projects in March 2012, was followed up with the third—a plan identifying four strategies and 15 key reforms to improve permitting and environmental reviews.  Finally, there was the FAST Act, Pub. L. No. 114-94 (FAST = Fixing America’s Surface Transportation), which President Obama signed in December 2015—a bipartisan move to consolidate various procedures and create identifiable priorities and timelines for covered projects.

As this Stanford research note from David J. Hayes makes clear, the FAST Act and President Obama’s executive orders found success in speeding up renewable energy projects even without denigrating NEPA or other, similar statutes.  As Hayes put it,

[s]olar and wind energy permit processing was reduced from an average of four years to one and a half years, leading to the permitting of several dozen major utility-scale renewable energy projects and enabling the Interior to meet the 2005 Environmental Policy Act’s goal of siting 10,000 megawatts of renewable energy on the public lands three years ahead of schedule.

He should know: Hayes was Deputy Secretary of Interior from 2009-13 and played no small role in framing that agenda.  Indeed, the so-called FAST Act was well on its way to implementation at the time of the inauguration—with this guidance memo to all federal agencies under the signature of both OMB and CEQ officials.  As Hayes wrote in 2015,

[w]hen a single agency is in charge of a permitting decision . . . the EIS process works relatively well.  When a single agency has responsibility for both the environmental analysis and the decision, it typically can develop procedures and time lines that are geared to the nature and scope of the project in question.  [But] when multiple agencies are involved in reviewing major projects, the permitting process can easily go off the rails as agencies proceed one after another, in a linear fashion, to undertake their reviewing and permitting obligations.

David J. Hayes, Leaning on NEPA to Improve the Federal Permitting Process, 45 Envtl. L. Rep. 10018, 10020-21 (2015).  And the so-called FAST-41 guidance memo

By most accounts, real improvements were being put in motion as the Obama Administration wound down, putting “covered projects” on a bona fide fast track and putting all major projects on the path to real inter-agency coordination with procedures running concurrently.  That gave agencies like the Department of Transportation’s FAST reasons to focus on a few high-impact, high-profile infrastructure works.  Yet now it’s unclear what those Obama initiatives—midnight-like, many of them—will become in a #MAGA agenda that seems so clearly tailored to undo any- and everything Obama.

2. What Action Forcing? The Highest ‘High Priority’ Projects

Further down Section 1 in the January 24th EO, President Trump states that

it is the policy of the executive branch to streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation, such as improving the U.S. electric grid and telecommunications systems and repairing and upgrading critical port facilities, airports, pipelines, bridges, and highways.

Whereas in Section 2, the EO states that for any “infrastructure project[] for which Federal reviews and approvals are required,” where a state’s Governor or the head of any federal agency requests or the (as yet unnamed) chair of CEQ decides on his/her initiative decides that a project is a “high priority,” (considering “the project’s importance to the general welfare, value to the Nation, environmental benefits,” and any other factors the CEQ Chair “deems relevant”), and if it is deemed a “high priority,” Section 3 provides that

CEQ shall coordinate with the head of the relevant agency to establish, in a manner consistent with law, expedited procedures and deadlines for completion of environmental reviews and approvals for such projects. All agencies shall give highest priority to completing such reviews and approvals by the established deadlines using all necessary and appropriate means. With respect to deadlines established consistent with this section that are not met, the head of the relevant agency shall provide a written explanation to the Chairman explaining the causes for the delay and providing concrete actions taken by the agency to complete such reviews and approvals as expeditiously as possible.

One supposes that this can be reconciled with the FAST-41 guidance memo mentioned above which was signed January 13th.  But the two seem to be pointing in different directions.  Perhaps most importantly, the FAST Act itself states that it is not to be interpreted as preempting, limiting, or interfering with any power, jurisdiction, responsibility, or authority that a Federal agency has with respect to carrying out laws—including regulations—applicable to any covered project.  See 42 U.S.C. § 4370m-6(e).

3. Why #MAGA Is Going to Get a Hard Look—And Have a Hard Time

That brings us to the EO’s qualifications.  Section 4(a) states that the EO is to be “implemented consistent with applicable law and subject to the availability of appropriations,” while Section 4(d) states that the EO doesn’t “create any right or benefit, substantive or procedural, enforceable at law or in equity by any party.”  This is what drains the Trump order of any sting—or, really, any practical effect at all: “applicable law” will mean the monument to process and procedural checks on uninhibited public road and bridge building which this country erected—together—over the last half century.  NEPA is a principal column within that Pantheon, but it is by no means alone.  As early as 1966, the notorious § 4(f) of the Department of Transportation Act was putting the brakes on infrastructure spending where it might conflict with local, historic, or environmental priorities.

In short, thoroughly reviewing infrastructure projects—deciding whether their costs outweigh their benefits—is as American as the Eisenhower Interstate System.  And almost as old, too.  The procedural steps that laws like NEPA or Section 4(f) have created is also why judicial review of executive branch actions (including building or permitting infrastructure projects) grew increasingly searching throughout the last half century.  With more procedural steps and records being compiled, after-the-fact review grew that much more regular and expectable.  From the beginnings in Citizens to Protect Overton Park v. Volpe, 401 U.S. 402 (1971), to the very latest precedents on “arbitrariness” in immigration decisions like Judulang v. Holder, 132 S. Ct. 476 (2011), the courts have made clear that unstated or unaccounted-for influences behind the scenes are not to be tolerated in administrative procedures.  Coming to terms with that lesson might take this Administration some time.  But it is time we shouldn’t be wasting given so many urgent infrastructure and environmental needs.

{Image: Grand Coulee Dam, © Wikipedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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