Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act (IF11584, Version 1)

Summary

A Congressional Research Service In Focus report, IF11584 (Version 1), dated June 22, 2020, by R. Eliot Crafton, Pervaze A. Sheikh and Erin H. Ward, on Executive Order 13927, issued June 4, 2020, and the Endangered Species Act. It explains that Section 7 of the E.O. directs agencies to use the emergencies authority at 50 C.F.R. §402.05 to satisfy ESA Section 7 (16 U.S.C. §1536) consultation requirements for actions facilitating economic recovery from the COVID-19 national emergency, and requires summary reports within 30 days and every 30 days thereafter. The report summarizes informal and formal consultation, biological opinions, incidental take statements and the 1986 emergencies regulation, and lists questions for Congress.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

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
https://crsreports.congress.gov
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.

https://crsreports.congress.gov
Executive Order 13927 on Economic Recovery from the COVID-19 Emergency and the Endangered Species Act

IF11584

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permissio n of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11584 · VERSION 1 · NEW

File and source

File: IF11584.1.pdf
Size: 455,478 bytes
SHA-256: 83d17fda8e00991003ee5161949a4fe4b1806a7d151f0f8ea7a45aec342cff6f
Our copy: IF11584.1.pdf
Original: crsreports.congress.gov