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White House Issues Executive Order with Aim of Expediting Infrastructure Projects

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On June 4, 2020, the White House issued an Executive Order (“EO”), tied to the COVID-19 National Emergency, directing that “Agencies, including executive departments, should take all appropriate steps to use their lawful emergency authorities and other authorities to respond to the national emergency and . . . should take all reasonable measures to speed infrastructure investments.”  The effect of the EO is two-fold.  First, the EO directs various specific agencies to, within thirty (30) days of the EO, submit a list of infrastructure-related projects that will be expedited.  The following agencies and types of projects are singled out in the EO:

  • Transportation Infrastructure Projects, including “highway and other infrastructure projects that are within the authority of the Secretary [of Transportation] to perform”
  • Civil Works projects within the purview of the Army Corps of Engineers
  • Projects on Federal lands subject to the authority of the Secretaries of Defense, the Interior, and Agriculture

As to each of the agencies mentioned, the EO directs that the agency “shall use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated” projects.  This seems to indicate that the EO’s purpose is not only to accelerate the commencement of new projects, but also to expedite work on ongoing projects.  Thus, contractors already working on Federal projects subject to this EO should be aware of the directive to expedite and should be cognizant of any impact on project schedules and timelines the directive may cause.

The second effect of the EO is, in general, to employ emergency-based regulatory review procedures applicable to such projects pursuant to the National Environmental Policy Act (“NEPA”), Endangered Species Act, Clean Water Act, and other similar statutes.  In a general sense, the EO directs all agencies to identify potential infrastructure projects subject to these laws and to use emergency-based review procedures wherever possible, including specifically “the emergency Army Corps permitting provisions.”  Regarding NEPA, the EO’s direction is for agencies to rely upon “emergency procedures, statutory exemptions, categorical exclusions, analyses that have already been completed, and concise and focused analyses, consistent with NEPA.” 

Clearly, the goal of the EO is to increase the speed and number at which infrastructure-related projects are commenced and carried out by directing expediting and emergency review procedures.  With Congress likely to pass another COVID-19 stimulus bill sometime soon, if that bill contains an infrastructure stimulus component as is widely predicted, it is probable that there will be an uptick in federal construction projects in the coming months.  Despite the optimism behind the EO, however, the pace of projects should not theoretically be affected, since executive orders do not override state permitting procedures.  Nevertheless, Contractors should be aware that if the EO is implemented as planned, new projects enter the pipeline at a faster pace and should consider that in both performing current projects and bidding on future projects. 

The full Executive Order can be accessed here:  https://www.whitehouse.gov/presidential-actions/eo-accelerating-nations-economic-recovery-covid-19-emergency-expediting-infrastructure-investments-activities/

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