With the nation convulsed by multiple crises, President Donald Trump returned to a favorite stand-by of his presidency—asserting his authority to sweep aside environmental restraints and speed up construction of oil and gas pipelines.
But the executive order that he signed Thursday night—the third of his presidency aimed at expediting pipelines—is destined to spur more of the type of litigation that has rendered his previous directives ineffective so far.
The White House invoked the same legal authority the president has to expedite hurricane and flood response actions to declare an “economic emergency,” that requires the waiving of environmental reviews and other regulations.
“This order will be a sitting duck for the sorts of legal challenges that have been so successfully brought against other Trump environmental rollbacks,” said Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia University. “Few developers or lenders will risk millions on starting construction in reliance on this order surviving in court.”
The White House provided few details on the order before the scheduled signing at 4:30 p.m. “I can tell you it does have to do some of the permitting and energy as it relates to rebuilding this country,” said presidential spokesman Hogan Gidley in a brief noon appearance before reporters.
By 6 p.m., the White House had provided no copy of the order. There was no live streaming of any signing, nor any public appearance by Trump at the White House, where workers spent the day erecting tall metal barricades around the perimeter of the complex. Outside, crowds of protestors flanked the presidential residence in one of the demonstrations for racial justice that have proliferated in cities across the nation since the police killing of George Lloyd.
Finally, after 6:15 p.m., the White House made copies of the order available.
“From the beginning of my Administration, I have focused on reforming and streamlining an outdated regulatory system that has held back our economy with needless paperwork and costly delays,” Trump said in the document. “Antiquated regulations and bureaucratic practices have hindered American infrastructure investments, kept America’s building trades workers from working, and prevented our citizens from developing and enjoying the benefits of world-class infrastructure. The need for continued progress in this streamlining effort is all the more acute now, due to the ongoing economic crisis.”
The president’s critics were quick to point out that his order was poorly timed, since minority communities would be disproportionately affected by his move to waive the environmental review mandated under the National Environmental Policy Act (NEPA).
“Today President Trump is dealing another blow to the Black community, during a worldwide pandemic and nearly a week into nationwide Black Lives Matter protests against police brutality and structural racism,” said Raúl M. Grijalva (D-Ariz.), chair of the House Natural Resources Committee, in a statement. “Gutting NEPA takes away one of the few tools communities of color have to protect themselves and make their voices heard on federal decisions impacting them.”
The second executive order of Trump’s presidency, issued in January 2017 (after his plan to repeal Obamacare), was a directive to expedite oil and gas pipelines. In his speeches, he often repeats a line about creating 48,000 jobs in his first week in office by reviving the Keystone XL pipeline from Canada and the Dakota Access pipeline in the midwest.
In fact, environmental opponents of the Keystone project have so far been successful in preventing its advance with legal challenges to its water permit. And although the Dakota Access pipeline was completed, the Standing Rock Sioux Tribe in March won a court order for a sweeping new environmental review of the project; the judge is now considering whether the flow of oil should be stopped while the review is completed.
Legal experts expressed doubt that Trump’s latest order could directly affect the outcomes in the Keystone XL or Dakota Access litigation. In the future, such litigation by states and tribes may be made more difficult by rules that the Environmental Protection Agency finalized this week in response to a 2019 Trump executive order.
Sen. Thomas Carper (D-Del.), the highest ranking Democrat on the Senate Environment and Public Works Committee, said in a statement that it was clear that Trump is seeking to cut communities out of the process.
“By allowing projects to plow ahead without public engagement or input, this executive order will fast-track projects that could tear through communities, harm air quality, endanger drinking water sources, destroy critical habitats and threaten endangered species,” said Carper. “Under the guise of immediate relief, this executive action will cause long-term damage that will not be easily undone.”
Legal experts noted that Trump’s use of the economic downturn to invoke environmental waivers was unprecedented. “These emergency exemptions have traditionally been used for necessary fast responses to disasters, such as clearing away debris after a hurricane, or building field hospitals,” said Gerrard in an email. “They have not been used as a backdoor way of creating construction jobs.”
Jayni Foley Hein, natural resources director at New York University Law School’s Institute for Policy Integrity, said Trump’s novel legal theory could have an effect that is precisely the opposite of what the White House intends. “In a strange way, this could create more uncertainty for project developers, as their approvals will be on shakier legal footing,” Hein said.
“It’s hard to say if it’s bluster and posturing or if it’s wishful thinking or some combination,” Hein said.
But so far at least, despite his repeated efforts, Trump has been singularly unsuccessful in building pipelines with a stroke of his pen.