Fifteen states have filed suit against the Trump Administration, the Army Corps of Engineers, and the Advisory Council on Historic Preservation (ACHP) over the President’s executive order (EO) declaring an energy emergency.
The suit – filed in the Western District of Washington State by attorneys-general from Arizona, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan. Minnesota, New Jersey. Oregon, Rhode Island, Vermont, Washington and Wisconsin – alleges that the January 20 EO “is unlawful, and its commands that federal agencies disregard the law and in many cases their own regulations to fast-track extensive categories of activities will result in damage to waters, wetlands, critical habitat, historic and cultural resources, endangered species, and the people and wildlife that rely on these precious resources.”
According to the states, the President wrongly invoked his authority under the National Emergencies Act to declare an energy emergency, and that subsequent actions by various agencies that cite the EO in order to accelerate permitting contravene the intent of emergency provisions to address only immediate threats to life or property.
With respect to the ACHP, the suit argues that its “actions in utilizing emergency procedures to fulfill the President’s directive in the Executive Order directly contravenes the National Historic Preservation Act [NHPA] and other applicable statutes because those statutes do not authorize emergency action under the circumstances described in the Executive Order.” The suit alleges that the ACHP’s February 19 notice directing agencies to utilize emergency procedures for a host of energy projects contravenes its emergency procedures under 36 CFR 800.12.
The suit states that the ACHP failed “to consider how impacts to historic and archaeological sites resulting from permitting pursuant to emergency procedures would undermine, rather than further, the NHPA’s objective of preserving and protecting historic and archaeological sites” and failed “to articulate a reasoned explanation of how the Executive Order constitutes an emergency within the meaning of” the 800 regulations. It also argues that the ACHP’s “decision to implement ‘emergency procedures’ represents the consummation of its decision-making process on how to effectuate the President’s directive in the Executive Order and is therefore a final agency action justiciable under the [Administrative Procedures Act].”
The suit alleges that laws like the NHPA, the National Environmental Policy Act and others “are not just bureaucratic red tape. They serve important purposes by ensuring the action agency makes permit decisions based on a full understanding of the environmental, social, historic, and geological factors at the project site.” The attorneys-general also point out that expedited review timelines, as demanded by the EO, strain state resources.
The suit asks the court to declare the EOs and subsequent agency notices illegal and to stop agencies from issuing expedited permits under them.