Emergency Exemptions From Environmental Laws Applicable To The Coronavirus Pandemic

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Introduction

The national response to the coronavirus crisis will face several impediments and obstacles, but federal and state environmental laws should not be among them. Most of these laws have emergency exemptions that allow the usual (and sometimes lengthy) procedures to be bypassed, and some substantive requirements to be waived, in instances of true urgency. Furthermore, nearly all environmental consent decrees include force majeure provisions that will excuse performance with compliance obligations under certain circumstances. This Client Alert provides a preliminary review of many of these exemptions and exceptions to ordinary environmental obligations.

Responding to the National Emergency

It is too early to know all that must be done to cope with this crisis, but some that can be imagined would ordinarily be subject to environmental regulation.

To pick one example that is already apparent, if some of the more dire predictions of the virus's spread come true, the nation's supply of hospital beds will be overwhelmed, and it will be necessary to build many new medical treatment facilities. If this was to be done with federal money, it could ordinarily be deemed to be a major federal action (or perhaps many actions—one for each facility) requiring impact assessments and possibly environmental impact statements (EISs) under the National Environmental Policy Act (NEPA).

However, President Trump's declaration of a national emergency on March 13 invoked the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). In addition to giving many powers to the Federal Emergency Management Agency, the Stafford Act provides an exemption from NEPA for immediate response actions. 42 U.S.C. § 5159, 44 C.F.R. § 10.8.

Many of these facilities might be built in existing hospital parking lots or other open land. However, it is possible that some will require demolishing existing buildings. The Stafford Act also gives the President the authority to clear debris and wreckage resulting from major disasters. 42 U.S.C. § 5173(a).

The text of NEPA contains no emergency exemptions. However, the implementing regulations of the Council on Environmental Quality authorize lead agencies to make "alternative arrangements" in emergency situations. 40 C.F.R. § 1506.11. For disasters and other emergencies abroad, Executive Order 12114 (Environmental Effects Abroad of Major Federal Actions) provides (in section 2-5) for exemptions from environmental review requirements for relief action.

Additionally, after the terrorist attacks of September 11, 2001, the U.S. Environmental Protection Agency (EPA) used its enforcement discretion and issued "no action assurances" to allow certain actions that would otherwise violate the Clean Air Act. This included, for example, rules regarding vapor recovery at gasoline pumps and certification rules for tank truck carriers.

State Environmental Exemptions During Emergency Response

Several states have laws comparable to NEPA that govern actions requiring discretionary state or local approvals. These might otherwise require environmental review of new construction, but these, too, tend to have emergency exemptions.

One example is New York's State Environmental Quality Review Act (SEQRA). The regulations under it exempt from the EIS requirement "emergency actions that are immediately necessary on a limited and temporary basis for the protection or preservation of life, health, property or natural resources, provided that such actions are directly related to the emergency and are performed to cause the least change or disturbance, practicable under the circumstances, to the environment." 6 N.Y.C.R.R. § 617.5(c)(42). The courts have interpreted this provision broadly to encompass events that at first glance do not look much like emergencies (such as prison overcrowding and homelessness), but obviously the response to the coronavirus would qualify.

New York, like many...