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




June 22, 2020
Executive Order 13927 on Economic Recovery from the
COVID-19 Emergency and the Endangered Species Act

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