The Permitting EOs Part 2: National Energy Emergency

Exempt, baby, exempt

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.

Emergency and Other Authorities

Beyond the DPA, Sections 2 and 3 gesture toward a broader suite of emergency authorities and other authorities that agencies could use to speed up energy infrastructure permitting.

As we’ve talked about on Green Tape, there are emergency provisions embedded within most major environmental statutes – provisions that, while rarely invoked, provide substantial flexibility during declared emergencies. NEPA’s emergency provision allows agencies to make "alternative arrangements" for NEPA compliance during emergencies. Under the Clean Water Act, the President can exempt federal facilities from compliance requirements for renewable one-year periods upon determining it serves the "paramount interest of the United States.” The EPA may provide four-month waivers of State Implementation Plan requirements under the Clean Air Act.

What makes this EO notable is how it systematically targets every available emergency authority simultaneously. Rather than relying on any single emergency power, it creates a framework for agencies to layer multiple emergency authorities together, potentially transforming what were intended as limited safety valves into an alternative permitting regime for energy projects deemed critical to national security.

Section 4: The Corps' Emergency Authorities

Section 4 targets three interrelated laws that give the Army Corps of Engineers control over activities affecting U.S. waters:

1. Clean Water Act Section 404, which requires permits for discharging dredged or fill material into waters of the United States

2. Rivers and Harbors Act Section 10, which requires permits for any work in, over, or under navigable waters of the United States

3. Marine Protection Research and Sanctuaries Act (MPRSA) Section 103, which requires permits for transporting and dumping dredged material into ocean waters

These laws work together as a comprehensive regulatory framework for water-related infrastructure. Pipelines and transmission lines that cross rivers often need Section 404 permits for the river crossing and Section 10 permits if that river is a navigable waterway. LNG export terminals often require MPRSA permits when they need to dispose of dredged material into ocean waters.

The emergency provisions for all three permitting programs are consolidated in one Corps regulation: 33 CFR 325.2(e)(4). Under this regulation, the Corps' Division Engineers can approve "special processing procedures" during emergencies that would result in "unacceptable hazard to life, significant loss of property, or immediate and unforeseen significant economic hardship." What this means in practice is that once the Corps receives adequate documentation of an emergency, it can develop and complete a permit action within a single day — compared to the months or years typically required for standard permits.

For energy infrastructure, these emergency authorities could be valuable. Pipeline water crossings, LNG terminals, and offshore energy installations all require multiple permits under these statutes. Fast-tracking them through emergency procedures could save months or years of review.

But there’s uncertainty here, too: these emergency provisions were clearly designed for acute crises, not programmatic infrastructure development. The Corps' own guidance emphasizes their use for natural disasters and sudden infrastructure failures. Using them systematically for energy projects would be a novel interpretation that could run into legal challenges — and so much like with the DPA, we’ll learn a great deal about how broadly these provisions can be applied.

Section 5: Endangered Species Act Emergency Consultation

Section 5 targets Endangered Species Act (ESA) consultation, directing agencies to “use, to the maximum extent permissible under applicable law, the ESA regulation on consultations in emergencies.”

The ESA's emergency consultation regulation (50 CFR 402.05) allows agencies to bypass normal consultation procedures during emergencies involving "acts of God, disasters, casualties, national defense or security emergencies, etc." Much like with NEPA’s “alternative arrangements,” the ESA emergency regulation allows consultation to proceed very quickly through “alternative procedures.” While the regulation requires formal consultation to be initiated once the emergency is under control, this happens after the fact — meaning agencies can proceed with their actions first and deal with the paperwork later.

This could be quite an important provision. Traditional ESA consultation is notoriously time-consuming. For projects that may affect listed species, agencies must prepare biological assessments, engage in formal consultation with the Fish and Wildlife Service or National Marine Fisheries Service, and wait for those services to issue biological opinions — a process that often takes months or years.

What’s more, ESA reform has always been a logical partner to NEPA reform. Both laws have litigious procedural requirements, and both laws share a similar trigger (NEPA is set off by “major federal actions,” while the ESA is set off by federal agency actions that “may affect” threatened and endangered species.) One key difference is that the ESA provides more exemption authorities.

Section 6: The God Squad

Now, folks, it’s time for America’s greatest exemption authority. I’ve been obsessing over the God Squad exemption for a while now; last week, all of my dreams came true.

The Endangered Species Committee, also known as the God Squad, is a seven-member cabinet-level committee that can exempt projects from ESA consultation. Section 6 of Trump’s EO essentially turns the God Squad into a standing committee, requiring quarterly meetings to review exemption applications and establishing an expedited timeline for decisions. This is significant because the God Squad has historically been more theoretical than practical. Since its creation in 1978, the committee has only convened three times and granted exemptions just twice.

The EO sets out an aggressive timeline for exemptions: 20 days for initial determination of eligibility, followed by 140 days to reach a final decision. It also requires the committee to meet quarterly even when there are no pending applications, specifically to identify "obstacles to domestic energy infrastructure" arising from the ESA or Marine Mammal Protection Act. This suggests an intent to use the committee not just to process individual exemptions, but to systematically identify opportunities for broader regulatory reform.

Section 7: Military Construction Authority

Finally, the EO invokes 10 U.S.C. § 2808, which provides emergency military construction authority during declared national emergencies. The implication here is that this authority could be used to address civilian energy infrastructure vulnerabilities.

Section 2808's military construction authority is potent but bounded. When invoked in accordance with the National Emergencies Act, it allows the Secretary of Defense to undertake military construction "without regard to any other provision of law." However, there are major constraints:

• Projects must "directly support" military needs related to the emergency

• Total costs are capped at $500 million for international emergencies or $100 million for domestic ones

• The authority to waive other laws only applies if those laws don't already have emergency waiver provisions

• Projects require congressional notification and a 5-day waiting period

By routing this authority through the Army Corps' civilian leadership rather than traditional military channels, the EO appears designed to address civilian energy infrastructure through the lens of military necessity. The logic seems to be that if vulnerable civilian energy infrastructure threatens military readiness, then strengthening that infrastructure could qualify as necessary military construction.

What comes next?

It’s hard to guess how many of these authorities will be invoked — and it’s even harder to guess how many of them will be invoked successfully. But we could gain a lot from experimenting with any one of these authorities. Successful use of the Defense Production Act, for example, could reshape the way we think about permitting critical infrastructure projects. So I commend the executive order, and am looking forward to seeing what comes of it.