US Army Corps Issues First Section 404 Permit Under New Expedited Procedures for Energy Projects

In this post, we outline the president’s emergency declaration, possible additional projects in the Army Corps’ new expedited queue, and likely litigation challenging the Army Corps’ new procedures.

The President’s Energy Emergency Declaration

President Trump issued Executive Order (EO) 14156, “Declaring a National Energy Emergency,” which found that “the United States’ insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security, and foreign policy” and declared a national emergency. To meet this declared emergency, the EO instructs federal agencies to invoke their emergency authorities to facilitate the production of domestic energy resources. Specifically, “agencies are directed to use, to the fullest extent possible and consistent with applicable law, the emergency Army Corps permitting provisions to facilitate the Nation’s energy supply.” EO § 4(b).

The emergency declaration is one piece of the Trump Administration’s multi-faceted policy to encourage domestic fossil fuel production and “energy dominance.” (See our coverage here, here, and here.) A coalition of state attorneys general have sued to invalidate the energy emergency declaration, and that lawsuit remains pending. See Washington v. Trump, No. 2:25-cv-00869 (W.D. Wash.).

The Army Corps’ Emergency Process

In April, the Army Corps announced that it would use its emergency authorities to expedite its evaluation of a Section 404 permit application from Enbridge Energy for the Line 5 pipeline in northern Michigan and Wisconsin. Citing the president’s national energy emergency declaration, the Army Corps found that the permit request qualified as an “emergency” under the Army Corps’ regulations. Under those regulations, the Army Corps may use special processing procedures if standard processing “would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship.” 33 C.F.R. § 325.2(e)(4). The Army Corps has now issued the permit, which allows Enbridge to impact wetlands as it constructs a new section of an oil and gas pipeline.

The Army Corps is adopting emergency procedures on a district-by-district basis. For instance, the Detroit District is implementing a 15-day public comment period in its emergency procedures and setting a goal to issue a written authorization within 30 days.

It is not clear how many projects will receive emergency consideration. In February, the Army Corps was considering more than 600 projects for emergency review, but the Corps has since said it will continue to evaluate which projects qualify for emergency consideration. Emergency review may benefit many projects, though it comes with a risk of inviting litigation.

Already, one environmental group has threatened to sue President Trump and the Army Corps for using expedited procedures under the president’s national energy emergency declaration. Other groups have argued that the Line 5 project does not meet the Army Corps’ definition of an emergency and criticized the legal sufficiency of Line 5’s Section 404 permit.

Members of the firm’s Environmental group monitor administrative activity and court decisions affecting the regulated community.