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EO to Expedite Infrastructure, Waive Reviews

Wednesday, June 10, 2020

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Last Thursday (June 4), President Donald J. Trump signed a second Executive Order, advising federal agencies to expedite infrastructure investments and other activities as to accelerate the United States’ economic recovery from the COVID-19 pandemic.

In order to push these projects through, Trump has instructed agencies to waive environmental regulations and to use all relevant emergency and other authorities necessary to expedite these projects.

In the order, Trump writes, “Antiquated regulations and bureaucratic practices have hindered American infrastructure investments, kept America’s building trades workers from working, and prevented our citizens from developing and enjoying the benefits of world-class infrastructure.

“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.”

Promoting Infrastructure

This isn’t the first time Trump has pushed big new infrastructure projects to boost the economy. Last year, Trump issued Executive Order 13868 on “Promoting Energy Infrastructure and Economic Growth.”

In the order Trump writes, “To enable the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce, the Federal Government must promote efficient permitting processes and reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.”

Trump goes on to note on the nation’s current policy to promote private investments in energy infrastructure, water quality certifications, safety regulations, renewals and authorizations, in addition to other environmental, social and governance issues.

Specifically, the order covers Section 401 of the Clean Water Act, which provides that States and authorized Tribes have a direct role in Federal permitting and licensing processes to ensure that activities subject to Federal permitting requirements comply with established water quality requirements.

However, Trump notes that the section is outdated—having been enacted in 1948 and significantly reorganized in 1972—and causes confusion and uncertainty, thus hindering the development of energy infrastructure.

In his order, Trump advised that U.S. Environmental Protection Agency Administrator Andrew Wheeler consult with States, Tribes and relevant executive departments and agencies in reviewing the section, along with the EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with redefined policies in the order.

By January, the Trump administration announced that it had finalized a rule to remove environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. However, the revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.

According to PaintSquare Daily News, the ruling affects the roll back of nearly 95 environmental rules and is slated to be replaced by Trump’s “Navigable Waters Protection Rule.” Both the EPA and the U.S. Army is hosted a public webcast for the public to help explain the rule’s key elements in February.

That same month, the EPA stated that it would be reducing the number of waterways receiving federal protection under the Clean Water Act. While the decision has reportedly pleased farmers, fossil fuel producers and real estate developers who previously disagreed with Obama-era rules, 14 states have sued the EPA regarding the change, claiming that the decision ignores science, legislation and removes basic protections under the CWA.

As a result of the announcement, in April, the Natural Resources Defense Council, along with its partners, filed a lawsuit against the U.S. Environmental Protection Agency and the Army Corps of Engineers over the Navigable Waters Protection Rule.

According to the NRDC, the Navigable Waters Protection Rule—which the council refers to the “Dirty Water Rule”—excludes millions of miles of rain-dependent streams and millions of acres of flood-preventing, pollution-trapping wetlands from safeguards outlined in the CWA.

In the lawsuit, both the EPA and the Corps have been accused of violating the Administrative Procedure Act and the CWA when promulgating the Navigable Waters Rule.

The violations are specifically pointed to the agencies’ disregard for the Navigable Waters Rule’s impacts on the integrity of the nation’s waters, which removes protections for waters and overlooks science-based findings reported in the CWA.

By the beginning of June, however, the EPA had announced that the agency issued another rule that would both promote the construction of energy-based infrastructure projects and protect waterways across the nation.

According to Wheeler, the final rule moves to “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.”

With the updated ruling, states are now no longer able to use the law to object to projects “under the auspices of climate change.” The final rule now:

  • Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request;
  • Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act;
  • Explains EPA’s roles under Section 401;
  • Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process; and
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

Although, issuing the final rule wasn’t favored among all. According to reports, many Democrats and environmental groups oppose the ruling, as the original Section 401 of the Clean Water Act was critical in protecting state drinking water quality. In addition, the final rule will also burden states with limited resources in conducting project evaluations in reduced time restrictions.

What’s Happening Now

To ease the economic “emergency” stemming from the COVID-19 pandemic, Trump signed Executive Order, “EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”

While the order looks to accelerate transportation infrastructure and infrastructure, energy, environmental and natural resources projects on federal lands as well, it does so by directing agencies to waive requirements imposed by laws such as the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, among others.

The order is intended to speed up public works projects as to create more jobs and boost the economy. Trump writes in the order that he has “determined that, without intervention, the United States faces the likelihood of a potentially protracted economic recovery with persistent high unemployment.”

According to The Washington Post, the Transportation Department has already begun issuing waivers from safety rules for truckers and railroads to help move goods throughout the country. Although, other agencies—including the Department of Health and Human Services, the FDA, the Interior Department and the EPA—have failed to specify what their plans might be in wake of the order.

In moving forward with the change, only the Council on Environmental Quality, a division of the Executive Office of the President, will be able to approve “alternative arrangements” for each federal agency when emergency circumstances should bypass environmental regulations.

"By emphasizing the need to improve our country’s crumbling infrastructure and creating additional flexibility," said Kristen Swearingen, ABC Vice President of Legislative and Political affairs, "the construction industry will be better able to plan and execute even the most complex projects while safeguarding the health of our workforce, communities and the environment.” 

Other construction industry associations have also voiced their support in regard to the order. Nick Goldstein, Vice President of Regulatory and Legal Issues for the American Road & Transportation Builders Association, praised the decision, saying, “ARTBA is supportive and believes the [executive order] will use existing statutory authority to help spur infrastructure projects during a time of national emergency.”

However, Goldstein believes that the order will likely be challenged in court. His prediction is in reference to the many environmentalists and criticism from Democratic lawmakers.

"Instead of trying to ease the pain of a nation in crisis, Trump is focused on easing the pain of polluters," said Gina McCarthy, a former EPA administrator who now heads the Natural Resources Defense Council.

McCarthy’s views are mimicked by Richard Lazarus, a Harvard University professor of environmental law, who wrote in an email to the Washington Post saying that, “The good news is that the president has once again assumed he possesses absolute power to say what the law is, but he does not.

“That is the job of the courts, and they will reject the president’s effort to sweep away critically important public health protections enacted by Congress and signed by prior Republican and Democratic presidents.”

Trump’s order gives agencies 30 days to provide a summary report of projects that have been expedited.


Tagged categories: Construction; Environmental Control; Environmental Protection; Environmental Protection Agency (EPA); EPA; EPA; Government; Infrastructure; NA; North America; President Trump; Program/Project Management; Project Management; Upcoming projects

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