An executive order signed by President Trump last week is intended to speed up infrastructure projects by using emergency authorities to avoid environmental reviews and community feedback mandated by a number of laws. Supporters have lauded the order’s potential for boosting the economy and improving infrastructure. Critics have questioned its legality and derided it as a threat to the environment and the health of poor communities and communities of color that are disproportionately affected by polluting infrastructure.
Below, Deborah Sivas, the Luke W. Cole Professor of Environmental Law at Stanford, discusses the order’s legality and potential impact, and why she thinks the federal agencies the order empowers may not want to rely on it.
The executive order justifies sidelining environmental laws on the basis of emergency authorities. How is that justification likely to hold up in court?
Regulations and guidelines implementing core federal environmental laws – the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act – provide for emergency procedures in very limited circumstances. But none of those emergency exemptions apply to a situation like this where an administration just wants to goose the economy with new projects. Like so many of the current administration’s executive orders, this one is more bluster than substance. But if a federal agency invokes this order to evade environmental laws in approving an actual project, that action could be challenged in court, and I suspect the challenger would succeed.
Critics have pointed out that lifting environmental review of major projects, such as highways and oil pipelines, could disproportionately affect communities of color, where these projects are more likely to be constructed. How would that happen?
Communities of color are almost always disproportionately affected by large projects, in part because such projects often target those communities and in part because those communities tend to have fewer resources to fight the project. Laws like the National Environmental Policy Act help level the playing field a bit by putting the burden on decision makers to disclose a project’s environmental impacts, allowing affected communities the opportunity to have their voices heard. By encouraging agencies to avoid those disclosure laws, the executive order is effectively closing communities out of the decision-making process.
President Trump has said the executive order is a step toward “reforming and streamlining” a regulatory system that unduly hampers the economy. How do you respond to that logic?
Well, our environmental laws are not responsible for the current economic downturn. Only three months ago, the president was trumpeting the “greatest economy ever,” even with our environmental laws intact and functioning. There really is no evidence that compliance with environmental laws is a drag on the economy. In fact, environmental cleanup laws have spawned a lot of jobs. On top of that, there is substantial evidence that these laws have protected many people and many communities from the kinds of devastating human health impacts and environmental degradation that the nation faced before the laws were adopted. For example, the requirements of the Clean Air Act not only resulted in the reduction of debilitating urban air pollution, but spurred the cleaner car technologies we have today.
Are there any controversial projects that are likely to move toward completion as a result of the executive order?
I’ll give you one example. We are working with Indian tribes in connection with a federal proposal to increase the height of California’s Shasta Dam by more than 18 feet. This project is an existential threat to a tribe whose ancestral lands would be inundated, yet the federal government never completed the legally required environmental review and tribal consultation for the project. I could see the federal agency using this executive order to invoke an “emergency,” scrap any further attempt to comply with environmental and cultural preservation laws and deny the tribe any further opportunity to have its voice heard.
What might this order lead to in terms of further environmental policy overhauls?
I’m not sure it will lead anywhere. Smart federal agencies that don’t want their projects entangled in litigation over the legality of this executive order would be wise not to rely on it and instead just comply with the law.