Trump’s latest marching orders on public lands

Trump – Nailed it

The Trump Administration declared the coronavirus pandemic to be a “national emergency” in March. On June 4, the president issued an executive order on “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.”  It has been characterized as “waiving environmental protections,” in particular the National Environmental Policy Act and the Endangered Species Act, and would include actions taken on public lands. This has been condemned in the usual places.

It will be interesting to see how this plays out on federal lands, and whether it makes any difference.  Trump already has the pedal to the metal on development activities, so I wonder what more they could do – without actually violating a law.  Maybe we should expect more lawsuits.

Here’s some of the key language in the EO (with my emphasis):

Sec2.  Policy.  Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and to facilitate the Nation’s economic recovery.  (I assume that means other non-emergency authorities, and not other unlawful authorities 🙂 )

Sec5.  Expediting the Delivery of Infrastructure and Other Projects on Federal Lands

b)  To facilitate the Nation’s economic recovery, the Secretary of Defense, the Secretary of the Interior, and the Secretary of Agriculture shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance.

Sec6.  National Environmental Policy Act (NEPA) Emergency Regulations and Emergency Procedures.

b)  To facilitate the Nation’s economic recovery, the heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA, CEQ’s NEPA regulations, and agencies’ NEPA procedures.

Sec7.  Endangered Species Act (ESA) Emergency Consultation Regulations.

(b)  The heads of all agencies are directed to use, to the fullest extent possible and consistent with applicable law, the ESA regulation on consultations in emergencies, to facilitate the Nation’s economic recovery.

Sec10.  General Provisions

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Of course an executive order can’t change the law or regulations, and this one explicitly refers to existing procedures that can be used in emergencies.  All I see Trump doing here is pointing out that there are existing authorities to expedite projects, and agencies should be using them.  But maybe the intent might be to expand the situations that are considered emergencies to include an economic recession.  I doubt that could be done “consistent with applicable law” related to emergency determinations.  Here is the language applicable to Forest Service NEPA (36 CFR §220.4):

The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources.

If there is a need to mitigate immediate harm to life, property or important resources, it would be consistent with applicable law to use the established emergency procedures.  There is either nothing new in the executive order, or if there is, we should expect it to be challenged.  (And then there is the question of why he waited three months to address this “emergency.”)

But these are dark days.  The Washington Post quoted an attorney at a large national law firm (Perkins Coie) that doesn’t usually represent environmental plaintiffs.  He noted that the National Environmental Policy Act was enacted 50 years ago partly to prevent arbitrary federal decisions such as building highways through parks and communities of color and that the current administration cannot simply set aside laws aimed at protecting vulnerable Americans or the environment. “I will not be surprised to see many observers comparing this move — declaring an emergency to shield agency decisions from the public — to the order to clear Lafayette Square on Monday evening,” Jensen said, referring to actions in a Washington park this week. “It’s just one more face of authoritarian ideology, with a clear link to issues of race and equality and government accountability.”


15 thoughts on “Trump’s latest marching orders on public lands”

  1. Trump seems to push agenda(s), thinking he’ll just win in court, on some sort of technicality. He continuously underestimates his opponents in the courts. Trump seems to push action forward, saying, “We’ll see what happens”. His Administration seems to already have a poor record in decisions. Let him try in court! Time is not on his side. His second term is slipping through his fingers. (Whew! Avoided multiple jokes there)

  2. I think some people think these days are darker than they really are because some groups see everything the Trump Administration does as bad. And yet, despite the warnings these same groups gave us in 2016, government agencies amble ahead in their usual ways, funded, after all, to do what Congress wants and when the Administration oversteps, and sometimes when they don’t, the Courts step in.

    So the latest variant is “if Trump wants to rebuild infrastructure ” (something that I must note that there is bipartisan support for in Congress,) it must really be bad. Infrastructure… so let’s think why that could be bad…

    People will say that infrastructure projects are bad for minority communities. That may be so if your experience is freeway widening in cities. Perhaps not so much for rebuilding dams, bridges, power lines for new energy infrastructure, public transportation, and so on- the projects I observe in my travels. Now I ask “has this attorney assessed which infrastructure projects are good or bad for minority communities?” No, he’s assuming the worst. We each have the right to survey recent and proposed infrastructure projects that we observe outside the Beltway and come to our own conclusions.

    FWIW I also thought that the WaPo headline was not accurate “Trump signs order to waive environmental reviews for key projects.” Asking for a report on what can be done in 30 days is hardly waiving environmental reviews. Plus any ideas for what might be a good use of existing emergency authorities would have to make it through CEQ and DOJ review.

    Which reminds me as a pragmatic person, if this is June and agencies have to submit a report on what can be done in 30 days (July) things would hardly become “expedited” in any sense before November. And we all know what happens in November. EO’s (like Congressional hearings) can be theatrics, signals sent to supporters without spending the political capital to do something of more substance and risk.

    To summarize, I think we’ve been operating at unrealistic levels of outrage on these issues for 3.5 years, which (1) has led to us being unnecessarily divided and has promoted what feels like hatred, and (2) we haven’t kept our outrage powder dry for the really bad things. In fact, with what the “usual suspects” say about relatively tiny things, most people would be unable to discern any egregiously bad things.

  3. Sharon, I can’t even…so I won’t.

    I do wonder, though, if Jesus Christ were walking the earth today what he’d think (preach and, most importantly, do) about the Trump administration’s words and actions.

    • That’s a good question. For 2000 years, people have been asking questions like that. If you read “how the teachings of Jesus apply to real life decisions” you’ll find that shaded by the current culture projected back in time. He was a revolutionary, he was a wisdom teacher and so on.

      It’s not too hard to read the whole NT for yourself, and see exactly what he was heard to say (given the difficulties that Bart Ehrman and other biblical scholars have described of the stories circulating for so long before they were written down).

      I think it’s pretty difficult to extrapolate from the first century colonial rule of Rome to today. But what we know is that he didn’t spend any time (as documented in the NT) railing against the obviously repressive government. He felt compassion for, and did his best to relieve the suffering of, all the human beings that crossed his path. Taking these ideas and applying them to the current situation would be difficult/contested.

      What we know is that followers of Jesus, as well as members of our parent religion, Judaism, today, disagree about political things.

      What can we make of that? Perhaps Jesus would have called for radical empathy, in the words of Rabbi Melissa Weintraub in the Forward:

      “In the immediate aftermath of the election, we witnessed a tug-of-war around empathy among Jewish and general commentators in blue America. Many expressed bewilderment and shock: “How could we have not known half our country?” “What blinders have we worn?” “What failure of empathy — basic miscomprehension — brought us here?”

      The call for empathy in turn inspired a backlash: “Why should we kowtow to racism?” “Lives and the planet are on the line. You want me to hug the people who’ve brought on such threat and harm?” “Reaching out to them isn’t just morally dubious, it’s a waste of resources. We can win elections without them.”

      Resisting engagement with red and purple counterparts is understandable. Yet many of the arguments against pursuing understanding rely on false binaries and strawmen. As if we must choose: Fight or dialogue, agitate or heal, condemn or introspect, rally the base or reach out to the other. As if noticing neglect for the grievances of the rural heartland obliges us to obscure the suffering of immigrants, African-Americans, the LGBTQ+ community, Muslims, and the urban poor.”
      “It is in liberals’ interest not only to fight, protest, and condemn, but also to extend ourselves, to touch down in the “middle of nowhere” to grapple with the sensibilities of “flyover country.” To pursue empathy is not to sing “Kumbaya.” It is, rather, to overcome the objectification of people whose lived experience we need to understand to uncover our own blind spots and increase the likelihood that our arguments and challenges will land and be taken in. Whether we are drawn to the table for the sake of relationship, insight, or political expediency, heavenly argument means listening as a precondition for being heard.”
      As for me, I think Jesus would be about holy listening, radical empathy and healing human-imposed divisions wherever they occur. But I don’t know for sure and it’s unlikely anyone else does.

  4. I’m basically agreeing with you, Sharon, that there is tendency to overreact because we’ve learned that Trump really will do what we let him get away with. I don’t agree that, “government agencies amble ahead in their usual ways.” I think most would say that the political interference with facts is unprecedented (think everything EPA and NOAA’s hurricane forecast), and policy positions are more extreme and out of touch than anything we can remember (mostly arguably in pursuit of unneeded “energy dominance”). And then there’s the decimation of the BLM. Infrastructure investments would be great, but my point is that existing environmental laws do not consider that an emergency (and Congress sure isn’t treating it like one).

    • But I would argue that in our world (public lands policy) Trump has not cared enough/involved himself enough to make anything more extreme than standard R points of view. “Energy dominance” is just political rhetoric for “energy independence” or “increasing domestic production of all energy sources (not just arguably “bad” ones).

      I don’t think the BLM has been “decimated.” What evidence do you have that supports that?

      If environmental laws and Congress don’t consider it an emergency, then nothing will happen.. so..
      I haven’t seen Trump actually “get away with” very much (again, in our world) due to the courts.

        • I don’t count moving 20-50 folks out of 10,000 to Colorado as “decimation”.

          Many BLM folks are already at the Denver Center.. so would you argue that BLM was previously decimated? Or maybe Grand Junction is bad and Denver is OK?

          If everyone in DC is working from home anyway and not in the office, are all the agencies “decimated?”

          • Ok, we’ll call it “chaotic dismantling” (or “hollowing out”).

            “Chaos is probably an understatement,” said Elena Daly, a former assistant director at the bureau, who told ProPublica the BLM shakeup is “absolutely” designed to hobble an important federal function.

            But maybe the field is still “ambling” rather than hobbling. Maybe someone from there will weigh in with how it feels to them.

            • Hmm. let me guess under what kind of administration Daly was the assistant director?

              I bet, like the FS, there are as many opinions as there are employees.

              When I was looking her up online to make sure I found this Greenwire report about a 2009 IG investigation.
              “NLCS officials told IG investigators that their relationships and communication with outside groups supported an agencywide initiative to develop and maintain partnerships with these entities and that they did not discuss with the groups topics that were off-limits for federal employees. But BLM’s deputy ethics counselor characterized the relationship between NLCS and the NWF legislative representative as “incestuous” and stated that NLCS “probably crossed the line” in its contacts with the advocacy groups.”

              Expecting straight talk about what’s happening from a political appointee of a different color admin doesn’t seem very realistic to me.

  5. I don’t think I’m overreacting to conclude that Trump has done so many outrageous things in virtually every arena that he leaves us dumbstruck and numb. The early years of the Reagan administration were notable for unwinding much env progress (James Watt at Interior, Anne Burford at EPA, Bob Burford at BLM, John Crowell at USDA, etc) and it was CALCULATED. The difference is that Trump is not calculated per se; more a bull in a China shop. I’m generally disappointed in bureaucrats unwillingness to blunt his wildest instincts with thoughtful deflection, foot-dragging, obfuscation, and respectful resistance.

    • I think bureaucrats actually are doing that, we just don’t see much of it. Whistleblowing.. immediately into the media. “thoughtful deflection, foot-dragging, obfuscation, and respectful resistance” not so much, in fact these folks wouldn’t want attention drawn to their strategies because they are more interested in the outcome than public attention.

  6. And here’s Trump’s unprecedented record under the Endangered Species Act: “Nearing the end of Trump’s third year in office, the president has finalized just 21 species for federal protections, less than a third of the number finalized under former President Obama during the same time period and fewer than previous Republican presidents.”

    And here comes the first lawsuit against the executive order regarding “emergencies:”
    “Everyone sees through Trump’s ploy. There’s quite a difference between rebuilding after an earthquake and claiming we need to build an oil pipeline to fight the coronavirus,”

  7. And here is the what that lawsuit has produced (so far) – a list of projects:

    There is a link to the list, and it doesn’t appear to include any Forest Service projects. There are a number of BLM projects, including some for livestock grazing (mostly mining and energy, including renewables). There is one BLM fuels reduction programmatic EIS, and one RMP amendment.


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