On his second day in office, President Trump issued several executive orders and memoranda intended to overhaul the environmental review and approval process for pipeline and other infrastructure projects. Among them was EO 13755, intended to expedite environmental reviews and approvals for high priority infrastructure projects.1 The EO articulates that the Trump administration’s policy is to “streamline and expedite, in a manner consistent with the 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.”
The EO requires the Chairman of the Council on Environmental Quality (“CEQ”) to determine, within 30 days of a request, whether an infrastructure project qualifies as “high priority,” after consideration of the project’s importance to the general welfare, value to the Nation, environmental benefits, and such other factors as the Chairman deems relevant. Once a project is designated as high priority, the CEQ Chairman is required to coordinate with the relevant decision-making agency to establish, in a manner consistent with law, the procedures and deadlines for completion of environmental reviews and approvals. All agencies are to give highest priority to completing such reviews and approvals by the established deadlines. If such deadlines are not met, the agency head must provide a written explanation to the CEQ Chairman explaining the causes for the delay and providing what concrete actions the agency has taken to complete the review and approval as expeditiously as possible.
As stated, the EO provides its implementation will be “in a manner consistent with law.” This means that qualifying projects must comply with existing environmental laws such as the National Environmental Policy Act,2 the Endangered Species Act,3 the Clean Water Act,4 cultural resource laws such as the National Historic Preservation Act,5 and other related laws and regulations. Compliance with these laws and implementing regulations generally can be time consuming, particularly for complex or controversial projects, which is often the case with infrastructure projects such as pipelines and transmission lines.
Although likely the administration’s focus, implementation of the EO for pipeline projects such as Keystone XL and Dakota Access will likely face legal challenges. Opponents may assert that the expedited reviews did not sufficiently comply with the requirements of the environmental laws noted above. Further, the EO’s emphasis on expedited “approval” rather than “decision-making” offers an obvious target for opponents to assert pre-decisional bias and arbitrary and capricious decision-making under the Administrative Procedure Act.6
The EO is similar in its objectives to President Obama’s FAST Act, enacted in December of 2015 but not yet substantively implemented or tested.1 However, the FAST Act, while identifying similar infrastructure projects for expedited reviews, establishes a more complex process, emphasizes compliance with applicable laws, and imposes limitations on judicial review of FAST Act project decisions. The new EO and White House press release on the EO fail to mention the FAST Act or why the new EO was necessary in light of the existing law that already contemplates expedited review for the same types of projects. The new EO will likely be tested in the courts.
We will monitor the implementation of the EO and resulting litigation, and will update as developments occur.