Sixteen State AGs Criticize Executive Order that Seeks to Waive Environmental Reviews of Major Infrastructure Projects

Washington, D.C. — Today, a coalition of 16 state attorneys general led by Maryland Attorney General Brian Frosh Massachusetts Attorney General Maura Healey and California Attorney General Xavier Becerra sent a letter to the White House criticizing a June 4 executive order that asserts that, due to the COVID-19 pandemic, federal agencies should rely on “emergency” authority to cut short or skip environmental reviews and approve major infrastructure projects such as pipelines, highways and energy projects without delay. The AGs underscored that the implementing regulations of the National Environmental Policy Act (NEPA), Endangered Species Act (ESA), Clean Water Act (CWA) and other laws do not provide authority to avoid application of environmental laws. Those laws “only authorize the use of emergency procedures when complying with the normal environmental review requirements would pose an immediate threat to life or property, situations like natural disasters or other unforeseen and suddenly destructive events.”

The AGs noted that polluting industrial facilities are often located in lower-income communities and communities of color, and that the president’s order “threatens to place additional burdens on those already hardest hit by [COVID19] and disproportionately burdened by a damaged environment.” The president’s order lacks guarantees that the public will be informed of which projects have been greenlighted for expedited reviews, and fails to provide ways for the public to weigh in. In their letter, the AGs urged that “agencies make their decision-making processes, project lists, and status reports publicly available and allow for public comment on such actions.”

“Since taking office, President Trump has sacrificed important public health protections to benefit big corporations,” said AG Frosh. “But it is a new low to slash our bedrock environmental and public health reviews in the middle of this terrible COVID-19 public health crisis. By using the pandemic to help his friends, Trump will endanger and harm many thousands of innocent American families.”

“It’s deeply disturbing that in the middle of an unprecedented public health crisis that’s disparately impacting our Black, Brown, and immigrant families, President Trump is putting these communities at even greater risk,” said AG Healey. “We cannot ignore the critical environmental protections and public engagement process that are needed for new infrastructure projects, especially since they disproportionately impact our environmental justice communities. This harmful and illegal order must be withdrawn immediately.”

“President Trump’s attempts to use the current crisis to jam through an unpopular political agenda — without any oversight or regard for the law — are absolutely appalling,” said AG Becerra. “As evidence grows that communities exposed to air pollution are at increased risk from coronavirus, we urge the President to abandon this order that would give environmental polluters a free pass.”

The AGs’ letter highlights three laws that are targeted in the executive order — the National Environmental Policy Act, Endangered Species Act and Clean Water Act — and notes that their emergency regulations are “narrowly tailored” and “cannot be exercised beyond their explicit scope without running afoul of their authorizing statutes.”

• NEPA — The law’s emergency provisions were meant to apply in situations such as a dam failure, repairing roads damaged by a landslide, cleaning up an oil spill, or other imminent threats to human life, property or natural resources.
• Endangered Species Act — Economic factors are explicitly excluded from consideration in listing and delisting decisions under the ESA. The ESA allows for streamlined consultation only during emergencies such as “acts of God, disasters, casualties, national defense or security emergencies, etc.”
• Clean Water Act — Similar to the other statutes, the CWA authorizes agencies to waive permitting requirements only for “emergency reconstruction” of major features such as dams, levees and transportation infrastructure to avoid “an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not taken.

The attorneys general of Colorado, Connecticut, Delaware, Illinois, Michigan, Minnesota, New Jersey, New York, Oregon, Vermont, Washington, Wisconsin and Washington, D.C. joined AG Frosh, AG Healey and AG Becerra in sending the letter.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.