Public lands infrastructure projects being fast-tracked as a Covid-19 pandemic response under a June 4 executive order will be kept from public view, the White House said Tuesday.
Environmental attorneys and other legal practitioners say the White House’s shroud over the expedited projects suggests that the administration’s efforts to use the economic fallout from Covid-19 to circumvent environmental regulations may not be legal.
“I think not making the list public suggests that they may actually recognize the huge legal risks they are assuming in ignoring long-standing environmental review requirements without adequate justification, and that they are apparently just hoping that the public won’t notice,” said Elizabeth Klein, deputy director of the State Energy and Environmental Impact Center at the New York University School of Law.
The executive order gave the Interior, Agriculture and Defense secretaries each 30 days to provide the Office of Management and Budget a summary report identifying projects they plan fast-track as part of the government’s pandemic response. The agencies’ deadline for identifying those projects passed July 4.
“These reports are not public,” Chase Jennings, OMB deputy director of communications, said Tuesday.
He didn’t respond to further questions. The USDA declined to comment. The Interior and Defense departments didn’t respond to requests for comment.
In his executive order, Trump invoked emergency provisions of the Endangered Species Act, Clean Water Act, and the National Environmental Policy Act as justification for allowing federal agencies to circumvent the normal environmental review process under those laws in order to expedite infrastructure projects to bolster the economic recovery from the pandemic.
“I think not making the list public is a tremendous insult to the communities that may be affected by the infrastructure projects that are no doubt on the list,” Klein, a former Interior official in the Obama and Clinton administrations, said.
Calls to Rescind Order
Since Trump signed the order, 82 House Democrats and 16 state attorneys general called on him to rescind it, or at least be transparent about the projects identified for fast-tracking.
“It is crucial that agencies allow for prompt public engagement on any projects or actions deemed eligible for emergency review,” the attorneys general, led by Maryland Attorney General Brian Frosh (D), wrote in a June 29 letter to the OMB.
Fast-tracking projects, including oil and gas pipelines, natural gas compressor stations and other polluting facilities, would threaten low-income communities where those projects are commonly placed, they wrote.
“If you do not withdraw the Executive Order we urge you to emphasize the importance of transparency and public participation throughout the emergency identification, review, and approval of infrastructure projects,” the attorneys general wrote.
Frosh’s office didn’t immediately respond to requests for comment.
Courts Call Out Agencies
Courts have repeatedly called out the Trump administration, including the Interior Department and Agriculture Department’s Forest Service, for shoddy environmental reviews for federal projects on public lands.
In two separate decisions in May, a Montana judge canceled hundreds of oil and gas leases after finding that the Bureau of Land Management ignored greater sage-grouse protection requirements and failed to conduct “any analysis” of certain environmental impacts.
Most recently, another Montana judge on July 1 ruled that the Forest Service violated NEPA when it omitted information in its environmental review that would detract from authorizing a logging project in a national forest roadless area.
“It seems likely that what the Administration is attempting to do—consistent with many of their actions from the very beginning—is take unlawful shortcuts to advance their favored infrastructure projects, without fully considering the potential environmental impacts of those projects and without fully engaging with the communities that will be most affected,” Klein said.
Feeding Into Skepticism
Legal practitioners said Tuesday that the White House’s refusal to publicly identify fast-tracked projects cast doubt on its motivations and willingness to adhere to federal law—skepticism strong among environmental groups apt to challenge the administration’s actions.
“The main implication is that it’s going to feed into the skepticism of this administration’s agenda when it comes to the balancing act between environmental protection and developing infrastructure,” said Reza Zarghamee, special counsel at Pillbury Winthrop Shaw Pittman LLP in Washington, who represents industrial manufacturers navigating environmental liabilities.
Trump’s order and the White House’s unwillingness to disclose fast-tracked projects are likely to contribute to a suspicion among environmental groups that the administration is attempting to circumvent legally required environmental review and ultimately attempt to do away with it entirely, Zarghamee said.
“We’ll be watching for any projects that mysteriously get approved and will continue asking a lot of questions right now,” said Nada Culver, senior counsel for the National Audubon Society, an environmental group.
The order also increases the risk to companies seeking to build projects on federal lands because of the uncertain legality of using the economic impact of the pandemic as the basis for an emergency calling for infrastructure projects to be expedited, Zarghamee said.
“You risk having the environmental review process held up in court,” possibly setting a project back even further compared to legal challenges to a normal environmental review under NEPA, Zarghamee said.
Some attorneys representing industry say there’s nothing sinister behind OMB keeping fast-tracked projects under wraps.
“It’s not unusual with these executive orders for the results of them not to be public,” said Jane Luxton co-chair of the environment and administrative law practice at Lewis Brisbois Bisgaard & Smith LLP. “I’m sure OMB views this essentially as an internal management process to focus agencies on projects that should get additional attention.”
“I think these executive orders have been a continuous drum raising the agency heads’ focus on the economy, and using Covid now to make sure they look through their pipeline and do everything they can to be consistent with the law,” said Karen Bennett, Luxton’s co-chair at Lewis Brisbois Bisgaard & Smith. “And now the executive order gives them an initiative to keep things moving.”
Bennett said she is confident the administration will adhere to federal law. She said she would advise clients that have a project stuck in a years-long NEPA approval process that they might find it helpful to get on the fast-tracking list.
Short-Circuiting the Process
But others focusing on federal lands believe expediting projects under the auspices of the pandemic isn’t legal.
“I am hard pressed to understand, however, how or why the pandemic causes an emergency that makes NEPA compliance impossible,” Mark Squillace, a natural resources law professor at the University of Colorado Law School, said.
“I would expect litigation to follow any significant decision based upon this EO, and depending on the issue, I expect that plaintiffs will have a pretty strong argument for blocking the decision,” Squillace said.