So You Want to Ignore an Environmental Law

Imagining a Manhattan Project for AI

This past November, the US-China Economic Security and Review Commission released their annual report to Congress. The whole document spans 793 pages and includes upwards of thirty recommendations, but the bombshell is right at the top:

It’s striking that, just four years after GPT-3 was released, the AI arms race has been elevated to the top of the Commission’s priority list. But here at Green Tape, we’re terminally permitting-brained, and thus the concept of a “Manhattan Project for AI” brings up just one question: “Won’t all of this trigger NEPA?”

The answer is yes—and not just NEPA, but the whole host of environmental laws that generally constrain development in the United States. Now, I’m optimistic about the next few years—Congress and the executive branch have the opportunity to make it significantly easier to build the several-GW data centers that we’ll need to train cutting-edge frontier models. But in such a scenario that we need to rapidly (say, in less than a year) scale up government-led AI and its supporting infrastructure to counter Chinese efforts, we’ll also have to leverage some good old statutory exemptions and waiver authorities.

While this isn't an exhaustive list, and there are some precedential gray areas for what sorts of informal regulatory arrangements are legal (see: Project XL), what follows is a pretty comprehensive overview of the clearly-established, clearly-important exemptions across four major environmental laws: NEPA, the Endangered Species Act, the Clean Air Act and the Clean Water Act.

National Environmental Policy Act (NEPA)

Emergency Alternative Arrangements

NEPA’s emergency circumstances provision (40 C.F.R. § 1506.11) provides agencies the ability to bypass standard NEPA procedures and make “alternative arrangements” in emergency situations. After consulting with CEQ, agencies can move forward with actions that may have significant environmental impacts without going through the conventional NEPA review process. This authority has precedent in national security contexts, as demonstrated by Department of Defense activities during the 1990 Gulf War. The provision enables rapid response to urgent national priorities while maintaining basic oversight through CEQ consultation.

In the run-up to Operation Desert Shield, the Department of Defense had to apply for “alternative arrangements” from CEQ to test aerial deactivation of land mines in Nevada. USAF photo.

National Security Exemptions

NEPA includes robust protections for classified and sensitive actions. Under 40 C.F.R. § 1507.3(d), agencies can restrict public access to environmental assessments and impact statements addressing classified proposals. This authority is reinforced by FOIA Exemption 1 and the State Secrets Privilege (see: Kasza v. Browner). These provisions enable agencies to protect sensitive project details, thereby limiting the ability of obstructionists to sue, as the details of the NEPA review are withheld from the public.

Judicial Remedy Limitations

The Supreme Court's decision in Weinberger v. Catholic Action of Hawaii established that courts may limit remedies for NEPA violations when national security concerns are present. This precedent allows critical projects to proceed even with incomplete NEPA compliance, providing important flexibility for urgent national priorities.

Clean Air Act (CAA)

Emergency Exemptions

The CAA provides for four-month waivers of State Implementation Plan requirements under EPA authority (42 U.S.C. § 7410(f)). This provision enables rapid response to emergency situations and could potentially expedite facility construction when necessary.

Presidential Exemption Authority

The President holds broad authority under 42 U.S.C. § 7418(b) to exempt any emission source within the executive branch from compliance requirements. These exemptions:

• Last for one year and are renewable

• Must serve the "paramount interest of the United States"

• Cover all federal facility emissions

• Enable operations without extended permitting timelines

Specific Facility Exemptions

The EPA has established precedent for incorporating national security exemptions directly into facility permits, as demonstrated at the China Lake Naval Air Weapons facility. This approach enables tailored compliance flexibility for critical facilities while maintaining the broader regulatory framework.

Clean Water Act (CWA)

Presidential Exemption Authority

Similar to the CAA, the CWA provides presidential authority (33 U.S.C. § 1323(a)) to exempt federal facilities from compliance requirements. This one-year renewable exemption authority requires a "paramount interest" determination but provides significant flexibility for critical operations.

Endangered Species Act (ESA)

Defense Secretary Exemption

Section 7(j) of the ESA provides a mandatory exemption when the Secretary of Defense determines it necessary for national security. This powerful tool requires no discretionary review and enables projects to proceed regardless of species impacts when essential for defense purposes.

"God Squad" Exemption Process

The Endangered Species Committee, commonly known as the "God Squad," provides a path for exempting projects from ESA requirements. This seven-member cabinet-level committee can approve exemptions with a five-member majority when projects demonstrate no reasonable alternatives exist, benefits outweigh species impacts, and the action has national or regional significance.

Emergency Consultation

Under 50 CFR § 402.05, the ESA provides for expedited consultation during emergencies including national defense or security emergencies. This allows agencies to initially conduct informal consultation through alternative procedures determined by the Service Director. While formal consultation must eventually occur after the emergency is controlled, this provision enables rapid response while maintaining basic ESA oversight.