Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act

Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act

Updated January 28, 2021
Executive Order 13927 on Economic Recovery from the
COVID-19 Emergency and the Endangered Species Act
E.O. 13990 revoked E.O. 13927 on January 20, 2021. This
listed) that are present in the area affected by the action. If
report, published June 22, 2020, has been edited for length.
such species may be present, the agency must complete a
biological assessment to identify possible impacts from the
On June 4, 2020, President Trump issued Executive Order
proposed action on listed species or critical habitat.
(E.O.) 13927 on “Accelerating the Nation’s Economic
Recovery from the COVID-19 Emergency by Expediting
Agencies may engage in informal consultation with the
Infrastructure Investments and Other Activities.” The
Service(s) to determine whether their proposed actions may
President declared the COVID-19 outbreak a national
affect listed species or critical habitat. Informal
emergency that threatens national security on March 13,
consultations consist of correspondences and discussions
2020 (Proclamation 9994). The E.O. seeks to facilitate the
between the agency and the Service(s) regarding the
nation’s economic recovery from the national emergency
proposed action. If the agency determines the action is not
by directing selected federal departments and agencies to
likely to have an adverse effect on any listed species or
use emergency and other authorities to expedite regulatory
critical habitat, the agency may request concurrence in
compliance for infrastructure and other projects.
writing from the Service(s). If the Service(s) concurs,
further consultation generally is not needed. Regulations
Section 7 of the E.O. addresses interagency consultation
implementing the ESA require the Service(s) to respond to
under Section 7 of the Endangered Species Act (ESA; 16
a concurrence request within 60 days. This deadline may be
U.S.C. §1536). Specifically, the E.O. directs all relevant
extended by up to 60 days by mutual agreement.
agencies’ heads to identify and pursue opportunities to use
the authority provided at 50 C.F.R. §402.05 to implement
If the agency or the Service(s) determines the action may
alternative procedures to satisfy ESA Section 7 consultation
have an adverse effect, formal consultation generally is
requirements during certain emergencies.
required. In a formal consultation, the Service(s) evaluates
the action and issues a biological opinion (BiOp). The BiOp
Interagency consultation requirements under Section 7 of
may include reasonable and prudent alternatives (RPAs) to
the ESA are of perennial interest to some Members of
the proposed action if the action is likely to jeopardize any
Congress and other stakeholders. Any agency actions
listed species or adversely modify critical habitat. The BiOp
related to infrastructure investment or other economic
states whether the action would result in a take (defined as
recovery, such as those described in the E.O., that could
“harass, harm, pursue, hunt, shoot, wound, kill, trap,
affect threatened or endangered species or critical habitat
capture, or collect, or to attempt to engage in any such
are likely subject to Section 7 consultation. This In Focus
conduct”) of listed species. If the Service(s) anticipates an
provides a summary of ESA Section 7 interagency
incidental take (i.e., the take of a listed species due to an
consultation requirements, including the emergencies
otherwise lawful action) from the action, the BiOp also may
authority at 50 C.F.R. §402.05, and an overview of Section
include an incidental take statement (ITS). An ITS states
7 of the E.O., which addresses ESA Section 7, as well as
the anticipated incidental take and provides the agency with
potential policy and legal considerations.
an exemption to the ESA’s prohibitions on take. If jeopardy
to any listed species or adverse modification of critical
ESA Section 7: Interagency Consultation habitat is likely and no RPAs are feasible, the agency must
Section 7 of the ESA requires federal agencies to ensure
(1) forgo the action, (2) risk violating the ESA, or (3) obtain
that their discretionary actions and actions by nonfederal
a formal exemption from the Endangered Species
entities that require approvals, permits, or funding from
Committee. For formal consultations, the ESA generally
those agencies are not likely to jeopardize the continued
requires the Service(s) to complete the consultation and
existence of threatened or endangered species (listed
issue a BiOp within 90 days, but the Service(s) and the
species) or adversely modify designated critical habitat, as
agency may agree to a longer period. For consultations
defined in the ESA. To meet this obligation, Section 7 of
involving a nonfederal party, any extension longer than 60
the ESA requires agencies to consult about proposed
days requires the nonfederal party’s permission.
actions that may affect listed species or critical habitat with
the Secretary of the Interior and/or the Secretary of
Section 7 Consultation Emergencies Authority
Commerce. The Secretaries have delegated this authority to
In 1986, the Services promulgated a joint regulation (50
the U.S. Fish and Wildlife Service and the National Marine
C.F.R. §402.05) that allows agencies to conduct Section 7
Fisheries Service (hereinafter, the Services), respectively.
consultations using alternative procedures when
“emergency circumstances” require expedited actions that
Consultation begins by the agency requesting the Service(s)
would preclude advance formal consultations. The agencies
to identify any listed species (or species proposed to be
still must ensure, however, that they satisfy Section 7
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Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act
obligations. The Services did not comprehensively define
Potential Policy and Legal Considerations
what constitutes an emergency but extended the authority to
The extent to which agencies will use the emergencies
“acts of God, disasters, casualties, national defense or
authority at 50 C.F.R. §402.05 to expedite infrastructure
security emergencies, etc.” The Services have clarified that
and economic recovery projects, as directed by the E.O.,
agencies may exercise this emergencies authority for
and what effects this use may have on listed species or
unpredictable exigent circumstances that present a risk to
critical habitat is unclear. To assess what effects the E.O.
human life or property. For example, emergencies could
may have, Congress may consider several questions,
include hurricanes, wildland fires, oil spills , or flooding.
including the following:
Although agencies generally have the discretion to
determine what constitutes an emergency, Congress has
 How many planned or potential actions to foster
also identified emergencies in the past (e.g., Section 3003
economic recovery from the COVID-19 emergency
of P.L. 105-18).
qualify as “emergency circumstances” pursuant to 50
C.F.R. §402.05?
The Services do not prescribe specific alternative
procedures in the regulation. The Services have stated that
 Will the E.O. change how agencies identify what
an alternative procedure could include an informal
projects to pursue and which actions constitute a
consultation during which the Service(s) conveys relevant
response to an emergency eligible for expedited
information and any recommendations during the
consultation under 50 C.F.R. §402.05?
emergency to mitigate adverse impacts of an action on
listed species or critical habitat. The agency must exercise
 What alternative consultation procedures will be used to
its discretion as to when to consult with the Service(s)
expedite consultation using the emergencies authority at
based on the emergency and needed response. Although the
50 C.F.R. §402.05, and how will the efficacy of such
agencies are expected to contact the Service(s) as early as
procedures differ compared with nonemergency
possible during an emergency, the Services have stated that
consultation procedures?
agencies should not wait for advice from the Service(s)
before undertaking actions during an emergency.
 What listed species and critical habitat might be present
in the planned and proposed action areas and how might
The regulation requires federal agencies to initiate formal
such actions affect listed species and critical habitat?
consultation “as soon as practicable” once the “emergency
is under control.” After the formal consultation, the
 When will the national emergency be “under control,”
Service(s) issues an emergency BiOp describing the
and when will formal consultations be completed?
emergency, the recommendations given to the action
agency through informal consultation during the
Courts have indicated that the Services and agencies have
emergency, and the effect on listed species and/or critical
discretion to determine the circumstances under which
habitat. The BiOp also includes an ITS authorizing any take
emergency consultation procedures are appropriate.
that may have occurred due to the emergency action.
However, courts have interpreted the term emergency by
Because the formal consultation occurs after the agency
using the examples provided in the regulation to conclude
action, the Service(s) may not be able to identify any RPAs
that emergencies must be “unpredictable or unexpected in
unless it can identify future mitigation actions.
some way” and generally must involve risk to human life or
property. One court noted that emergency consultation “is
Executive Order 13927
meant for unexpected exigencies” and is “the exception, not
Section 7 of the E.O. addresses ESA Section 7 consultation.
the rule” for consultations under ESA Section 7. Whether
It directs selected agencies to use the emergencies authority
any economic recovery actions planned or undertaken in
at 50 C.F.R. §402.05 “to the fullest extent possible and
response to the COVID-19 pandemic would be consistent
consistent with applicable law” for actions facilitating the
with this interpretation will depend on the circumstances of
nation’s economic recovery from the COVID-19 national
a particular action.
emergency. The E.O. leaves it to the agencies’ discretion to
identify which actions may qualify.
If agencies use expedited consultation procedures pursuant
to the E.O., judicial review of the emergency consultation
The E.O. includes reporting requirements, which direct
itself may not be available. At least one court has held that
agencies to submit a summary report within 30 days of the
emergency consultation, as an informal and temporary
E.O. to the Secretaries of the Interior and Commerce, the
measure pending formal consultation, is not a final agency
Office of Management and Budget Director, the Assistant
action subject to challenge under the Administrative
to the President for Economic Policy, and the Chairman of
Procedure Act (5 U.S.C. §§701-706). The court held that
the Council on Environmental Quality. The report must list
parties instead could bring any such allegations only with
the agencies’ planned or potential actions to facilitate
respect to the BiOp issued pursuant to the formal
economic recovery that they have identified as potentially
consultation after the emergency situation is under control.
subject to the ESA emergencies regulation. The agencies
then must submit reports every 30 days until the national
R. Eliot Crafton, Analyst in Natural Resources Policy
emergency ends that list the status of previously planned or
Pervaze A. Sheikh, Specialist in Natural Resources Policy
potential actions and newly planned or potential actions that
Erin H. Ward, Legislative Attorney
may qualify for expedited consultation under the ESA. The
E.O. requires the Services to be ready to consult as needed.
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Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act

IF11584

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https://crsreports.congress.gov | IF11584 · VERSION 3 · UPDATED