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In response to President Donald Trump’s of a “,” the U.S. Army Corps of Engineers recently that would be eligible for fast-track permitting.

The projects, which include oil pipelines, natural gas power plants and mining projects, were already under review. But the possibility of accelerated permitting raised concerns that without effective oversight, the projects might be allowed to or risk contamination of drinking water sources.

Facing a , the Corps removed the list and said it would follow up with a refined version.

But based on experience as an and former government lawyer, it’s not clear that the claimed emergency conditions warrant fast-tracking major projects with minimal environmental review or public scrutiny.

Dealing with emergencies under the law

To be sure, swift action is often necessary in an actual emergency to prevent loss of life or property damage. A levee breach during a storm may require emergency repairs, including placing rocks, dirt or sand to contain flooding. An advancing inferno may call for hasty felling of trees to create firebreaks. Or a bridge collapse may necessitate prompt debris removal and reconstruction.

Existing environmental laws and regulations largely account for such circumstances. For instance, the generally requires federal agencies to analyze and publicly disclose the environmental impacts of their actions. In emergencies, however, agencies may comply with this requirement through “” such as a or a report on environmental impacts after the fact.

Similarly, the bars federal actions that jeopardize protected species. But there are limited exceptions for emergency circumstances. When there is a federally declared disaster, for example, the Endangered Species Act allows the president to exempt projects to repair or replace public facilities when necessary to prevent the disaster from recurring. Examples of such projects include .

President Trump’s declaration

President Trump’s declaration of a national energy emergency invokes the , which allows the president to follow emergency procedures that have been . For instance, for services to protect lives, property, public health and safety, or to lessen the threat of a catastrophe.

But a declaration of an emergency does not allow a president to waive or ignore all other legal requirements. The declaration must whose emergency provisions are being activated.

In this situation, the declaration calls on the U.S. Army Corps of Engineers “ to facilitate the (n)ation’s energy supply that may be subject to emergency treatment” under the Corps’ permitting process. That process is governed by and related statutes.

How the Corps’ regulations handle emergencies

Section 404 of the Clean Water Act requires project developers to apply to the Corps for a permit to discharge dredged material or other dirt or soil into “waters of the United States.” This term encompasses relatively permanent bodies of water . Many construction projects, such as pipelines or housing developments, require a Section 404 permit because they cross water bodies or involve the fill of adjoining wetlands. The includes public notice, a public comment period and preparation of environmental documentation, followed by the agency’s decision.

In emergency situations, the Corps’ for processing applications – which the regulations do not specifically spell out. Instead, agency officials must tailor the process to the circumstances of each case. According to the Corps, in some situations an appropriate response to the emergency might include “ for dealing with the clean up and repair caused by these events.” Immediate approvals may be appropriate for work to prevent flood damage from an approaching storm, but inappropriate for reconstruction after that storm.

The October 2024 collision of a cargo ship with a bridge in Baltimore constituted an emergency allowing adjustments of environmental protection regulations.

The “national energy emergency” declared by the president does not qualify as an emergency under the Corps’ regulations. Those regulations as “a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship” if the standard permitting procedures were followed.

suggests flooding and hurricanes as “example(s) of emergency situations caused by a natural disaster.” A further example includes “a catastrophic … failure … due to an external cause,” such as “a bridge collapse after being struck by a barge.”

Even if a situation qualifies as an emergency under the Corps’ regulations, the agency must make reasonable efforts to .

Furthermore, neither these regulations nor the emergency declaration excuses the Corps from its duty to comply with other laws. Under the , the Corps would still have to analyze and publicly disclose the environmental impacts of federal actions, though it perhaps could use those “alternative arrangements” like a shortened comment period. And under the , the Corps still can’t harm endangered species unless a permitted project would repair or replace public facilities in a declared disaster area.

If the Corps’ promised revisions to the list of emergency projects look anything like the original version, expect a flood of lawsuits – which will seek to challenge any permits granted under emergency procedures.

, Professor of Law,

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