The Nickel Report

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.

• Supporting Response Work as well as the Overall Economy
  • The private sector may be asked or seek to support response activities, such as
    • Providing facilities or land for temporary medical diagnosis, treatment or recovery;
    • Providing food, water or energy resources for response activities and those affected by the outbreak;
    • Constructing or repairing infrastructure needed for response activities and affected persons.
  • More generally, the private sector may be requested to help provide employment opportunities and continue economic activities on local, regional or national levels.
  • Conducting these activities can be delayed where federal agency approvals are needed but access to agency resources is constrained.
  • There are practical and legal tools available to facilitate direct support as well as broader economic activities while ensuring environmental protection and maintaining compliance with natural resource laws.
• Proceeding with Critical Projects and Activities
  • Agency Resources to Process Permit Applications and Other Actions May be Limited 
    • Many agencies have key roles in responses to pandemics and other national emergencies, and staff may be focused or redirected to priorities related to COVID-19 response—both internally, within the agency, and in connection with interagency activities
      • For example, Presidential Policy Directive 8 (PPD-8), National Preparedness, is designed to strengthen the security and resilience of the United States through systematic preparation for threats, including acts of terrorism, cyber-attacks, pandemics, and catastrophic man-made and natural disasters. It directs the heads of all executive departments and agencies with roles in prevention, protection, mitigation, response and recovery to develop department-specific operational plans consistent with their statutory roles and responsibilities.
      • The President’s powers in the event the nation is threatened by crisis, exigency or emergency include declaration of a National Emergency under the National Emergencies Act, 50 U.S.C. sections 1601-1651. When the President declares a national emergency, he must specify what statutory authority would be used.
        • On March 13, the President declared a “National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.” The declaration authorizes the Secretary of the Department of Health and Human Services to exercise Social Security Act section 1135 authority to temporarily waive or modify certain requirements of the Medicare, Medicaid and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule, including for purposes of addressing potential overcrowding in hospitals.
        • Other Presidential or agency actions may be forthcoming that could further affect federal agency resources and priorities.
      • The National Response Framework defines 15 Emergency Support Functions (ESFs), with each having a designated “Coordinating Agency.” The Army Corps of Engineers, for example, is the coordinating and primary agency for ESF #3—Public Works and Engineering. Under this Function, the Corps is responsible for coordinating and executing several missions, including provision of temporary emergency power, building temporary housing and other critical public facilities (such as hospitals), and providing infrastructure assistance in areas such as water/waste water management.
    • Agency staff are also affected by workplace changes, such as the need to telework and reliance on remote technology.
  • Ensuring High Priority Projects Receive Attention May Require Adjustments in Outreach 
    • Delay does not mean that specific projects are no longer a priority.
      • While some projects may be triaged to lower priority levels, others may warrant elevation. For example:
        • An infrastructure project that will deliver needed water or power.
        • A development project that will provide needed housing may be even more critical.
        • A food, mineral or other resource development project that is critical to local, regional and national economic health.
    • Communications may need to be redirected or elevated within agency chains of command to ensure appropriate attention and prioritization.
  • Environmental Laws Provide Mechanisms to Expedite Agency Reviews in Emergency Circumstances
    • Determining the applicability of emergency provisions of environmental laws to a specific project is typically “based on emergency-specific facts and circumstances.” See Council on Environmental Quality, Emergencies and the National Environmental Policy Act.
    • Depending on the facts of a specific project, arguments may be available that agencies should exercise authority to expedite reviews during or in support of the government emergency response to a disease outbreak. 
    • National Environmental Policy Act 
      • The Council on Environmental Quality (CEQ or the Council) NEPA regulations address emergency circumstances. For example, 40 F.R. § 1506.11 (Emergencies) authorizes alternative arrangements for NEPA compliance in emergency situations when the agency proposal has the potential for significant environmental impacts and would require an Environmental Impact Statement.
        • “Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.”
        • These alternative arrangements are developed for temporary response activities, based on emergency-specific facts and circumstances, through consultation between the action agency and CEQ; generally, these do not alter long-term NEPA compliance requirements for the activity.
      • Some activities may be subject to a categorical exclusion from further NEPA review (CATEX).
        • FEMA CATEX D1 covers “[m]inor renovations and additions to buildings, roads, airfields, grounds, equipment, and other facilities that do not result in a change in the functional use of the real property (e.g. realigning interior spaces of an existing building, adding a small storage shed to an existing building, retrofitting for energy conservation, or installing a small antenna on an already existing antenna tower that does not cause the total height to exceed 200 feet and where the FCC would not require an EA or EIS for the installation), and FEMA CATEX D4 covers “[r]econstruction and/or repair by replacement of existing utilities or surveillance systems in an existing right-of-way or easement, upon agreement with the owner of the relevant property interest.”
      • If no CATEX applies and the action is not expected to have a significant impact on the environment, CEQ Guidance encourages the preparation of a concise, focused Environmental Assessment in emergency circumstances.
    • Endangered Species Act 
      • ESA Section 7 Consultation During Emergencies
        • The consultation regulations provide for expedited procedures to accommodate the need for Federal agencies to respond promptly to emergencies.
          • The regulations provide a modified consultation procedure for the Services to respond to emergency situations.
          • During an emergency, which includes “acts of God, disasters, casualties, national defense or security emergencies, etc.,” the Services have expedited consultation procedures to accommodate the need for a prompt agency response. See 50 F.R. § 402.05.
          • Detailed guidance for handling emergency consultations is provided to Service personnel in the Fish and Wildlife Service's ESA section 7 Consultation Handbook's sections 8.1 and 8.2. The primary point of the emergency procedures is for those situations where using the standard procedures does not allow the action agency to carry out the emergency response activities in a timely way.
        • During emergency consultation, the Service may provide recommendations for how to minimize or avoid adverse effects to listed species during the emergency response.
          • As soon as practicable after the emergency is under control, the action agency must initiate formal consultation with the services if listed species or critical habitat have been adversely affected. 50 F.R. § 402.05. Although formal consultation occurs after the response to the emergency, procedurally it is treated like any other formal consultation.
    • Clean Water Act Section 404 and Rivers and Harbors Act Section 10 Permitting 
      • Corps permitting in emergency situations is addressed at 33 F.R. section 325.2(e)(4). Corps regulations define an “emergency” 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 corrective action requiring a permit is not undertaken within a time period less than the normal time needed to process the application under standard procedures.”
      • In emergency circumstances, Corps Division Engineers, in coordination with District Engineers, are authorized to approve special processing procedures to expedite permit issuance. The Corps also uses alternative permitting procedures, such as general permits and letters of permission, when appropriate, to expedite processing of permit applications for emergencies.
• Maintaining Compliance
  • Ensuring continued compliance with environmental laws may sometimes falls to the backburner when a company is in the midst of responding to an emergency situation.
  • Agency enforcement staff will typically expect companies to have taken all reasonable steps to ensure compliance with requirements, even during minimal staffing or emergency situations. For example:
    • Meeting Clean Water Act section 402 National Pollutant Discharge Elimination System (NPDES) permit discharge limits;
    • Safely storing, treating and disposing of hazardous waste;
    • Maintaining full spill prevention, response, containment and countermeasure capabilities;
    • Maintaining all environmental systems consistent with standard practices and procedures to ensure systems continue to function as intended;
    • Providing adequate leadership and oversight of personnel responsible for environmental systems;
    • Promptly reporting events if required.
  • Moreover, agency enforcement staff often increase inspections and enforcement during times, like an economic recession, when companies could be complacent in an effort to save money. Companies should remain diligent, even in an emergency, to avoid costly enforcement action as a result of complacency.