Yesterday, the Department of the Interior published a press release announcing the establishment of emergency permitting procedures to facilitate the rapid development of fossil fuel resources. Interior takes this action to fulfill a White House directive to rely on any and all emergency authorities to spur domestic energy production in response to a so-called “national energy emergency.”
The source of the directive to expedite permitting is President Trump’s day one Executive Order 14156, Declaring a National Energy Emergency. The Order broadly directs agencies to search for all legal emergency authorities to expedite fossil fuel-driven domestic energy production. As justification for declaring a national emergency, the Order claims that the previous administration’s policies caused the United States to have “a precariously inadequate and intermittent energy supply,” “high energy prices,” and an “unreliable grid.” The Order further claims that this purported energy emergency poses an “extraordinary threat to our Nation’s economy, national security, and foreign policy.”
In a previous blog post, we looked closely at Executive Order 14156, assessing the legitimacy of the underlying energy emergency, the possible emergency authorities that agencies might invoke, and the likely success of actions taken pursuant to those authorities. We found (1) that President Trump’s findings about energy supply and grid unreliability contradict government research and independent assessments (see, e.g., here and here) and that the existence of an emergency is, therefore, a flawed premise to begin with; (2) that there are many laws and regulations that grant relevant agencies emergency authority, usually in limited and prescribed circumstances; and (3) most, if not all, of those authorities are not appropriate for these circumstances and would be vulnerable to challenges in court. Now that Interior has become the first agency to publicly announce formal plans to carry out the directives in Executive Order 14156, this blog post examines the emergency authorities cited specifically in Interior’s announcement.
Interior’s press release states that the agency’s new emergency permitting procedures “are designed to expedite the review and approval, if appropriate, of projects related to the identification, leasing, siting, production, transportation, refining, or generation of energy within the United States.” It lists a number of energy sources to which the expedited procedures will apply, including crude oil, natural gas, coal, uranium, geothermal heating, and more. Unsurprisingly, what’s missing from the list? Wind, solar, and battery storage.
Interior cites three sources of emergency authority to support its new procedures, including existing regulations issued under (1) the National Environmental Policy Act (NEPA), (2) the Endangered Species Act (ESA), and (3) the National Historic Preservation Act (NHPA). Interior claims that its new procedures will compress the reviews of potential projects required under these three statutes into a mere 28 days. If and when Interior approves project applications under these new procedures, individual decisions will likely be challenged in court as arbitrary and capricious agency action. We may also see facial challenges even sooner.
Interior’s “Alternative Arrangement” under NEPA
The most significant aspect of Interior’s expedited permitting procedures is its adoption of an alternative NEPA compliance process, referred to as “alternative arrangements.” The Council on Environmental Quality’s NEPA regulations (which the Council has sought to revoke through an Interim Final Rule) authorize federal agencies to make “alternative arrangements for compliance” with NEPA when “emergency circumstances make it necessary” to proceed with an action with significant effects without first preparing an environmental impact statement. Interior adopted the present alternative arrangements under its own NEPA regulations and with authorization from the Council on Environmental Quality.
In brief, Interior’s alternative arrangements allow projects identified in Executive Order 14156 to all but bypass NEPA requirements. For example, if a project is likely to have a significant environmental impact, it would normally need to prepare an environmental impact statement, which is a thorough process with a number of procedural protections. Under the alternative arrangements, environmental impact statements are to be prepared in 28 days, with only a 10-day public comment period and no public comment on a draft of the statement. Interestingly, the alternative arrangements require that the “project applicant must affirm in writing that they want the review of their project to be covered by the alternative arrangements.” Perhaps it’s not so much of an emergency that everyone has to treat it as such?
If Interior approves projects pursuant to its alternative NEPA compliance process, those approvals can be challenged in court under the Administrative Procedure Act (APA) as arbitrary and capricious, an abuse of power, or contrary to law. Parties bringing the lawsuit could argue that the alternative arrangements do not lawfully apply to the project at issue because they do not comply with Interior’s regulations. For example, 43 C.F.R. 46.150(d) states that “alternative arrangements will apply only to the proposed actions necessary to control the immediate impacts of the emergency.” Given that there are no immediate impacts of President Trump’s invented emergency, parties could challenge the expedited procedures’ application to any specific projects. It is also possible that we will see facial challenges to the alternative arrangements under the APA, essentially arguing that Interior has not met the criteria in its regulations to adopt alternative arrangements in the first place.
As we noted in our previous blog post, lawsuits challenging the legitimacy of an underlying presidential declaration of a national emergency could face headwinds in court. In Center for Biological Diversity v. Trump, for instance, a federal district court dismissed challenges to President Trump’s first-term declaration under the National Emergencies Act of an emergency at the U.S.-Mexico border. The court concluded that the plaintiff’s argument that “the Court can invalidate an otherwise lawful [emergency declaration] if the reasons justifying that action were a ‘sham’” raised a non-justiciable political question because the National Emergencies Act provides no standards by which a court can evaluate the President’s motivations. At the same time, the court acknowledged that an inquiry into the basis of the emergency declaration would be permissible under arbitrary and capricious review under the APA.
There are strong arguments against Interior’s adoption of alternative arrangements here. The relevant regulation, 43 C.F.R. 46.150(a), specifies that Interior can rely on alternative arrangements only when “those actions [are] necessary to control the immediate impacts of the emergency that are urgently needed to mitigate harm to life, property, or important natural, cultural, or historic resources.” Consistent with Interior’s regulation, the Council on Environmental Quality’s 2024 guidance on the NEPA emergency provision refers to emergencies as “natural disasters, catastrophic wildfires, threats to species and their habitat, economic crises, infectious disease outbreaks, potential dam failures, and insect infestations.” President Trump’s energy emergency just doesn’t fit the bill. Evidence does not support the claim that there is an “energy emergency” creating imminent threats to life, property, or other critical values. And if there were, the government would not leave it to the discretion of individual project applicants pursuing a wide range of project types and operating in a wide range of geographies whether or not to treat it as such.
Further, looking at past instances where the Council on Environmental Quality has approved alternative arrangements confirms that the national energy emergency is not the sort of circumstance contemplated by the NEPA emergency exception. This summary chart demonstrates the striking discrepancy between the nature of the energy emergency and the nature of the emergencies for which previous alternative arrangements were adopted. Those were genuine, life-threatening emergencies such as disease outbreaks or impending civil infrastructure collapses. Only two emergencies were related to economic crises, and those were individual responses to clearly defined, time limited circumstances which posed imminent risks—namely, approving funding, relocation, land clearing and demolition at a site to prevent the potential flight of a GM plant from Detroit at the peak of its financial crisis in 1980, and approving aerial pesticide spraying over Los Angeles in 1990 to address the outbreak of a fruit fly infestation that resulted in $800 million in economic damages to California’s agriculture industry. Courts, too, have emphasized the need for alternative arrangements to be limited to deal with immediate impacts of emergency. See, e.g., Forest Service Employees for Environmental Ethics v. U.S. Forest Service.
An indefinite policy to forgo meaningful environmental review and public participation on any and all fossil fuel projects on federal public lands is a creature of an entirely different kind.
Interior’s Additional Alternative Procedures under the ESA and NHPA
In addition to emergency NEPA procedures, Interior also adopted expedited procedures for the ESA section 7 consultation process. Interior’s regulation provides that “[w]here emergency circumstances [involving acts of God, disasters, casualties, national defense or security emergencies, etc.] mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act.”
Possible legal challenges to decisions made under the expedited ESA procedures will be procedurally similar to those discussed above, raising arguments that the adoption of the procedures and their application to specific projects are arbitrary and capricious agency action. Again, there is no plausible argument that the purported “energy emergency” amounts to “acts of God, disasters, casualties, national defense or security emergencies.”
One specific argument plaintiffs might raise here is that the procedures do not appear to meet even the requirements of the regulation authorizing them. 50 C.F.R. § 402.05 states that, in appropriate emergencies, “consultation may be conducted informally through alternative procedures that the Director determines.” However, Interior’s expedited procedures don’t really contain procedures. The document simply requires that the “Federal action agency coordinates with FWS in accordance with 50 CFR 402.05(a) and proceeds with the proposed action if the necessary requirements of other departments and agencies are met.” This circular reference to Interior’s regulations gives no indication of how the expedited procedures are “consistent with the requirements of sections 7(a)-(d) of the Act.” 50 C.F.R. § 402.05. Instead, it ostensibly throws them out the window.
Finally, Interior has adopted alternative procedures for compliance with section 106 of the NHPA. The Advisory Council on Historic Preservation’s regulations allow the agency to follow alternative procedures for “an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or another immediate threat to life or property.” Under the alternative procedures, the Advisory Council on Historic Preservation, State and Tribal Historic Preservation Officers, and Indian tribes or Native Hawaiian organizations with religious or cultural ties to historic properties will have merely seven days to comment on energy projects that will threaten those properties. Here, too, parties can challenge the alternative procedures and their application to projects as arbitrary and capricious.
Reflections on Interior’s Plan
If Interior moves forward with project approvals under any of its three new expediting permitting procedures, those approvals will certainly be challenged in court as arbitrary and capricious. Indeed, it is possible litigation may be brought to challenge the alternative arrangements on their face. In either event, we can expect that litigants will emphasize the fact that the so-called national energy emergency does not meet the criteria of the regulations on which Interior relies: it is not urgent, it is not narrowly tailored to a limited period of time necessary to address imminent risks, and it is not of the same nature as other emergencies for which alternative permitting procedures have been adopted.
The fact that renewable energy sources are missing from the list of projects to which these procedures apply, and the fact that project applicants have to opt in to the procedures for them to even apply, further underscore the pretextual nature of the national energy emergency. If there were a true energy emergency, the nation would pursue all sources of energy to reach an immediate and durable solution. Instead, just last week, Interior issued a stop-work order on the fully permitted and under construction Empire Wind offshore wind project, claiming that the Project’s decade-long permitting process, which included 2.5 years of environmental review, was “rushed.” Solar and wind energy sources are a key resource that would certainly be in the mix to address a real energy crisis. But that’s not the case here. Rather, the national energy emergency is a thinly veiled guise to further the Trump administration’s fossil fuel agenda. Interior’s emergency actions taken pursuant to that fiction should ultimately fail in court.
Olivia Guarna is the Climate Justice Fellow at the Sabin Center for Climate Change Law at Columbia Law School.
Michael Burger
Michael Burger is the Executive Director of the Sabin Center for Climate Change Law and Senior Research Scholar at Columbia Law School.
