U.S. Construction and Infrastructure, and Environment, Land and Natural Resources Alert

By K&L Gates attorneys : Ankur K. Tohan, Cliff L. Rothenstein, Tim L. Peckinpaugh, David L. Wochner, Molly K. Barker, Endre M. Szalay June 9, 2020

The Trump administration issued two executive orders (EO) in the past month seeking to encourage economic development through regulatory reform and relief as the United States navigates the reopening of business and activities throughout the country after the peak of COVID-19.  Both EO’s offer potential opportunities and risks to stakeholders. Our regulatory and policy team is well-positioned to help stakeholders navigate the implementation of these important EO’s. Last week, on June 4, 2020, the President issued an EO on Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities (“Infrastructure EO”) directing federal agencies to waive environmental laws to speed up federal approval for new mines, highways, railways, pipelines and other projects given the current economic “emergency.” Specifically, the Infrastructure EO calls on the Departments of Transportation, Defense, Interior, and Agriculture, along with the U.S. Army Corps of Engineers, to use all relevant emergency and other authorities to expedite work on, and completion of, all projects that are within their authority to perform or to advance. Just three weeks ago, on 19 May, the President issued an Executive Order on Regulatory Relief to Support Economic Recovery (Regulatory Relief EO) in the wake of the lifting of COVID-19 shelter-in-place orders across the country. As we discussed in our prior alert, the Regulatory Relief EO directs all federal agencies to identify regulations that may inhibit economic recovery and consider taking measures to temporarily or permanently rescind, modify, or waive those standards, or exempt entities or persons from them, consistent with applicable law, and consider exercising temporary enforcement discretion. In the environmental context, both EOs offer the potential for significant gains to the regulated community if agencies shorten or simplify permitting and approval processes. While the Regulatory Relief EO focused on revising regulations that inhibit economic recovery, the Infrastructure EO issued last week directs federal agencies to use their lawful “emergency” authorities and other powers to respond to the national COVID-19 emergency and to facilitate the nation’s economic recovery. The Infrastructure EO also directs agencies to streamline environmental reviews under the National Environmental Policy Act (NEPA) and consultation under the Endangered Species Act (ESA). Read the full story

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