Presidential declarations, executive orders (EOs) and agency pronouncements keep pouring out of the federal government at a pace that makes it hard to keep up. With Congress on its traditional two-week recess bookending Easter, the Trump administration’s actions are attracting even more attention than normal.
Here are some of the key developments from the last two weeks that may impact CRM:
Repealing “Unlawful” Regulations Without Public Notice or Comment
Issued on April 9, an EO entitled “Directing the Repeal of Unlawful Regulations” directs federal agencies to repeal rules – without the traditional and statutorily required public notice and comment process – if agencies believe they violate certain Supreme Court rulings, such as last year’s Loper Bright decision that overturned the Chevron precedent.
According to the EO, repealing of such regulations without notice and comment is allowable under the Administrative Procedure Act’s “good cause” exception, which enables the government to dispense with the public comment process when it is “contrary to the public interest.” The EO maintains that “[r]etaining and enforcing facially unlawful regulations is clearly contrary to the public interest.”
The EO directs agencies to “immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that clearly exceeds the agency’s statutory authority or is otherwise unlawful,” although it does allow agencies to make a case for keeping regulations that fall under this category.
Removing “Anti-Competitive” Regulations
Another EO, issued on April 9, takes aim at regulations the administration deems anti-competitive.
“Reducing Anti-Competitive Regulatory Barriers” requires agencies to identify regulations that “create, or facilitate the creation of, de facto or de jure monopolies; create unnecessary barriers to entry for new market participants; limit competition between competing entities or have the effect of limiting competition between competing entities; [or] unnecessarily burden the agency’s procurement processes.”
Under the EO, agencies must report such regulations to the Federal Trade Commission (FTC) and the Attorney General, along with a recommendation “as to whether each of the listed regulations warrants rescission or modification in light of its anti-competitive effects.” The EO further orders the FTC to issue a request for information (RFI) inviting the public to identify anti-competitive regulations.
The EO also directs agencies to identify regulations that “create or facilitate licensure or accreditation requirements that unduly limit competition.” It is not clear what extent, if any, this EO would involve any federal rules regarding qualifications for cultural resource professionals, such as the Interior Secretary’s Professional Qualifications Standards, although those do not, in of themselves, involve licensure or accreditation.
Incorporating More Tech into the NEPA Process
On April 15, the White House issued a presidential memorandum that seeks to speed up environmental permitting through greater use of technology.
The memorandum orders federal agencies to “make maximum use of technology in environmental review and permitting processes for infrastructure projects of all kinds,” with the goals of
- eliminating paper-based application and review processes
- accelerating the processing time for projects
- increasing the interagency use of existing analyses
- improving the transparency and predictability of project permitting schedules; and
- ensuring agency legal departments have the support, funding, and technology to provide the most expeditious and best defense of challenged environmental documents and permit decisions;
The memorandum calls on the Council on Environmental Quality (CEQ) to issue a “Permitting Technology Action Plan” that will, among other things, create “an initial data and technology standard for permit applications and reviews under [NEPA] and other applicable permits and authorizations,” which are not specified.
Because Congress has not appropriated funding for these activities, it is assumed that agencies will need to identify existing sources of money to reallocate to this project.
USDA Applies Emergency Procedures to More Than Half of U.S. Forest Service Lands
Citing President Trump’s March 1 EO, “Immediate Expansion of American Timber Production” Agriculture Secretary Brooke Rollins on April 3 issued a memorandum that effectively allows permitting provisions to be bypassed.
Declaring that 112,646,000 acres of National Forest Service lands are in an “emergency situation” due to risks of wildfire, insects and disease, the memorandum authorizes the Forest Service to take a range of actions, including the salvage of dead or dying trees, sanitation harvest of trees to control insects or disease, and the removal of hazardous trees in close proximity to roads and trails.
It directs the Forest Service to “deploy, or continue to deploy,” emergency authorities that include “emergency and programmatic consultation to comply with the National Historic Preservation Act.” It also asserts – based on provisions in the 2021 bipartisan infrastructure law – that any environmental assessment (EA) or environmental impact statement (EIS) “requires analysis of only the proposed action and the no action alternative and is not subject to the project-level pre-decisional administrative review.”
Ending Promotion of Historic Properties for Siting Federal Office Space
On April 15, the President signed an EO, “Restoring Common Sense to Federal Office Space Management,” that rescinds a 1996 EO signed by former President Bill Clinton that encouraged agencies to locate federal facilities in historic properties and districts. The Trump EO also rescinds a Carter-era EO that directed agencies to prioritize central business districts when siting federal facilities in urban areas.
The EO argues that the earlier EOs “failed to adequately prioritize efficient and effective Government service.”
Tell Us About How Federal Actions Affect Your Firm
ACRA continues to monitor and analyze the impacts of these and other administration actions, including those that affect the federal workforce, and is working closely with its allies in the preservation community to address policy shifts that affect cultural resource management and historic preservation.
If your firm has had a project cancelled or stalled, please let us know as much information as possible via this form. This information will be used internally by ACRA staff to understand the full scope of cancellations across multiple federal agencies.