Washington, D.C. (June 8, 2020) - Two recent Executive Orders (EO) aimed at promoting economic recovery from the COVID-19 crisis offer regulatory and enforcement relief and encourage agencies to expedite infrastructure project approvals. The May 19, 2020 EO 13924, "Regulatory Relief to Support Economic Recovery," directs agencies to determine whether previous regulatory reforms would promote economic recovery if made permanent and encourages compliance assistance through exercising enforcement discretion, including declining enforcement. And the June 4, 2020 EO 13927, "Accelerating the Nation's Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities," aims to speed up the permitting process for infrastructure projects to strengthen the national economy. As businesses look to move forward and recover from the COVID-19 pandemic, they should closely review these EOs for opportunities to take advantage of streamlined treatment and faster project approvals.

EO 13294 supplements the Administration's efforts to address the economic crisis brought on by the COVID-19 pandemic by encouraging federal agencies to rescind, modify, waive, or provide exemptions from federal regulations that may inhibit economic recovery and to provide guidance to businesses, particularly small businesses, on what is required of them under federal law for reopening. Specifically, the EO directs agency heads to identify regulatory standards that may inhibit economic recovery and consider rescinding or waiving those regulations, exempting regulated entities from compliance, exercising enforcement discretion, or extending regulatory compliance and enforcement deadlines. It also allows for compliance assistance through accelerated regulatory procedures to receive a pre-enforcement ruling and directs agencies to assess previous regulatory reforms to determine whether making them permanent would promote economic recovery. Since taking office, the Trump Administration has made regulatory reform a cornerstone of its agenda. This Executive Order is a continuation of the aggressive steps taken by the Administration to reduce the regulatory burden faced by American businesses that many argue increases operating costs, inhibits job creation, and stifles economic growth.

The second Executive Order, "Accelerating the Nation's Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities," builds upon the President's declaration that the COVID-19 outbreak is a national emergency and directs agencies to take emergency steps to facilitate economic recovery and respond to the COVID-19 pandemic. It specifically instructs the Secretary of Transportation and the Secretary of the Army for Civil Works to identify and expedite the completion of infrastructure projects to facilitate economic recovery, and further directs the Secretaries of the Interior and Agriculture to fast track the completion of infrastructure, energy, environmental, and natural resources projects located on federal lands.

Notably, aiming to expedite economically beneficial infrastructure, energy, and environmental projects, the EO allows for flexibility and expediency in conducting environmental reviews required under the National Environmental Policy Act (NEPA) by encouraging agencies to undertake alternative arrangements to facilitate NEPA compliance that apply in emergency situations. It also directs agencies to identify projects eligible for expedited consultation under the Endangered Species Act  (ESA) and expedited permitting under the Clean Water Act.

This June 4 Executive Order could potentially facilitate the construction and completion of many infrastructure projects that have been delayed by lengthy and burdensome legal challenges. For example, construction of the Keystone XL pipeline project was recently halted when a Montana judge suspended certain Nationwide Permit 12 activities pending an ESA consultation between the U.S. Army Corps of Engineers, U.S. Fish and Wildlife Service, and the National Marine Fisheries Services. The new Executive Order may allow agencies to utilize their statutory emergency powers to quickly issue permits and conduct environmental reviews for projects that can be tied to the nation's economic recovery.

Taken together, these two Executive Orders demonstrate the aggressive action the Administration is taking to speed economic recovery by unburdening business and encouraging investment in infrastructure and energy development. These initiatives are likely to generate opposition, so interested businesses and project developers should proceed carefully to ensure all legal and regulatory requirements are met in taking advantage of these rapidly evolving opportunities.

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