Energy Projects Could Get Quicker Wetland and Endangered Species Approvals

On the first day of his second term, President Trump signed Executive Order 14156 ("EO 14156") declaring a national energy emergency and instructing all federal agencies to use any existing emergency powers to facilitate domestic energy projects, including streamlined Army Corps of Engineers permitting and Endangered Species Review. "Energy projects" is broadly defined to include a variety of exploration, production, transportation, generation, and transmission for a variety of fuel and mineral production, not including solar or wind resources. 

An initial question is whether the relevant federal statute or regulation provides an agency with any emergency powers. EO 14156 does not provide any potential relief if the underlying statute or regulation does not grant emergency powers. 

One regulation specifically noted in EO 14156 that does provide emergency relief addresses permits issued by the Corps under the Clean Water Act and the Rivers and Harbors Act. These permits generally are required when jurisdictional wetlands will be impacted or activities in navigable waters will occur. 

These permitting regulations allow the use of special processing procedures for permits in "emergency" situations. "Emergency" is defined as "a situation which would result in 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 undertaken within a time period less than the normal time needed to process the application under standard procedures." See 33 C.F.R. § 325.2(e)(4).  

In the past, the Corps has used this authority to address hurricanes, floods, and the Deepwater Horizon oil spill. Corps guidance provides for flexible permitting procedures in emergency situations, including the use of letters of permission and after-the-fact determinations of mitigation requirements. The specific permitting procedures that would apply under EO 14156 are not currently clear. 

As required by EO 14156, the Corps developed a list of more than 600 currently pending projects where this emergency permitting authority may be applicable. The projects include various pipelines, oil terminals, and mining projects. In accordance with EO 14156, the Corps is now obligated to provide an update every 30 days on actions taken under the emergency provisions, including any new projects that are identified. 

In addition to Corps permitting, EO 14156 also specifically directs all agencies to identify planned or potential actions to facilitate energy projects that are subject to consultation requirements pursuant to the Endangered Species Act. An initial list of projects is due within 30 days of EO 14156, and updated reports are then due every 30 days. The Endangered Species Act regulations allow expedited, informal consultations to occur in situations involving "acts of God, disasters, casualties, national defense or security emergencies, etc." 50 C.F.R. § 402.05(a). Formal consultation is, however, required "as soon as practicable" after the emergency is "under control." Id. at 402.05(b). The formal consultation can impose additional mitigation measures for any takings of endangered species during the emergency. 

One issue that may arise with respect to EO 14156 is whether there is sufficient evidence of an energy emergency to support the emergency declaration. As addressed in a challenge to the declaration of an emergency related to the Southern border during the first Trump administration, a president has relatively broad authority to declare an emergency, and a court will generally consider the issue a political question that will not be second-guessed by the judiciary. See Center for Biological Diversity v. Trump, 453 F. Supp. 3rd (D.D.C. 2020).  

Another potential issue is that the grant of an emergency permit by the Corps will not necessarily meet the requirement to obtain any state or local permits for the activity, including any required state water quality certification. Any Corps permits issued under emergency authority may also be subject to challenge that the energy emergency does not meet the definition of "emergency" under the Corps permitting regulations, or that the expansion of the definition of "emergency" requires amendment of the permitting regulations under the Administrative Procedures Act. Finally, and as noted above, EO 14156 allows energy projects to take advantage of already-existing emergency powers only and does not create any new emergency powers. 

However, it is worth evaluating pending and new energy projects to determine if there are emergency procedures for approvals and permits that could be expedited under emergency procedures.