This piece originally appeared at Green Tape.
By now, President Trump’s NEPA executive order has been covered from every angle imaginable. In fact, it’s been covered so hard that my comments in a Twitter space ended up on E&E news.
Unfortunately, I think most of the coverage to this point has been poor. NEPA and CEQ regulations are complicated, and one gets the sense that the overwhelmingly negative media response so far is more reflective of journalistic herding than anything else. On the upside, we won’t have to wait very long to find out who’s right: the executive order’s aggressive timeline means that we’ll see CEQ’s new NEPA guidance roll out within the next few months.
Regardless, with all the focus on the NEPA executive order, Trump’s other major permitting reform EO went largely undiscussed. This is a surprise, because in his EO “Declaring A National Energy Emergency,” Trump directs agencies to make use of just about every single permitting exemption and streamlining authority on the books. I wrote about what this could look like a few weeks ago — and if anything, this EO goes even further than I expected.
Here’s a section-by-section breakdown.
Sections 2 & 3: Emergency Powers, the Defense Production Act, and Other Authorities
The order starts out broad, directing agency heads to "identify and exercise any lawful emergency authorities available to them" to facilitate energy resource development and infrastructure. Section 2 focuses on increasing energy production and supply, while Section 3 focuses on improving energy transportation and delivery systems.
The most striking element of these sections is the reference to the Defense Production Act (DPA), a law that gives the President broad authorities to influence domestic industry in the interest of national defense. The order directs agencies to evaluate whether DPA authorities might be necessary for energy development, and if so, to submit recommendations through national security channels.
The DPA isn’t usually brought up in discussions about permitting reform, as the law doesn’t explicitly provide agencies authority to override environmental laws. However, Title III, which enables the federal government to provide financial incentives to expand the production capacity of critical materials, allows certain actions to be taken "without regard to the limitations of existing law." Historically, the “Without Regard” clause has been primarily used to bypass procurement and contracting requirements that might slow down critical defense-related projects. But this EO appears to envision a more expansive interpretation.
This is all pretty fascinating for the permitting-obsessed, as we've never seen the Without Regard Clause tested in the context of environmental laws. While DPA-funded projects have traditionally gone through standard NEPA reviews, the clause's language could theoretically support bypassing or modifying certain procedural requirements when they directly conflict with national defense needs. This EO seems designed to test these boundaries, explicitly directing agencies to evaluate whether DPA authorities could help expedite energy projects.
It’s anyone’s guess how this works out in practice. Courts do not always interpret “without regard” or “notwithstanding” clauses as unlimited. And generally speaking, courts say that if Congress wants to override environmental requirements, it must do so very clearly. So if the president does try to make use of the DPA to streamline permitting, we’ll learn a lot about the limits of that authority.