WASHINGTON — To expedite the approval of infrastructure projects, the Trump administration revoked an Obama-era executive order designed to ensure federally funded projects are constructed to withstand floods.
However, this action may backfire and invite litigation that could end up slowing down the permitting process.
The administration has dedicated $200 billion in its fiscal-year 2018 budget as part of its overall $1 trillion investment plan to rebuild America's infrastructure, according to a White House press release.
The nation's "crumbling infrastructure will be replaced by new roads, bridges, tunnels, airports and railways," President Trump said in the Aug. 15 press release.
To expedite environmental reviews and the permitting process, Trump revoked Executive Order 13690 signed by former President Barack Obama in January 2015.
The federal government will "get out of the way to allow state and local governments to succeed at meeting their unique challenges," according to the White House press release.
But Trump's action may be shortsighted. Obama's executive order was designed to ensure new infrastructure projects would be built to withstand flooding.
"But the Trump people view it as a climate-change rule which they are trying to peel back," according to R.J. Lehmann, editor-in-chief and senior fellow at the R Street Institute, a Washington, D.C., think tank.
However, "it is costly to taxpayers to build in flood-prone areas where you will have to rebuild," Lehmann said in an interview Monday.
"That is what our message is to our conservative friends is that flood mitigation is a cost-effective strategy," he added.
Lehmann doubts Congress will address Trump's action as part of the effort to pass a National Flood Insurance Program re-authorization bill. "It is not a directly related issue," he said. And the "clock is ticking on passing a flood insurance bill by Sept. 30."
The Obama executive order created a Federal Flood Risk Mitigation Standard. And rumors that the Trump administration was preparing to revoke the executive order were quickly criticized by many organizations.
In a June 19 letter to National Economic Council Director Gary Cohen, 16 organizations representing insurance companies, civil engineers, floodplain managers, environmentalists and taxpayer protection groups urged the White House to maintain the Federal Flood Risk Mitigation Standard.
These organizations warned Trump's adviser that revoking Obama's executive order would be ill-advised.
Without the Federal Flood Risk Mitigation Standard, it might "encourage unprepared communities to build unwisely and subsequently rely upon federal help when flood disasters hit," the joint letter says.
"We simply cannot afford to allow this pattern to continue. When federal funds are used for development in flood-prone areas, it is simply common sense to consider and mitigate those risks upfront in order to ensure the investment will be long lasting," the joint letter said. But this advice was ignored.
Rob Moore, a senior policy analyst at the Natural Resources Defense Council, noted that Trump simply rescinded Obama's executive order with a single sentence: "We are rescinding Executive Order 13690."
"That is a great irony of the [Trump] executive order. It is intended to streamline permitting. But in fact it invites litigation that could hold it up," Lehmann said.
"The Trump order provides no guidance," Moore said in an interview Monday. And by default, it appears an executive order signed by former President Jimmy Carter in the 1970s will become the new standard again.
The Carter executive order wasn't slowing down any projects. "It is simply a design specification," according to Moore.
"If you are asking for federal money to help with a waste water plant, hospital or public building, the project has to be protected from flooding and in coastal areas it has to be protected from sea-level rise," Moore said.
However, Lehmann noted that the building standard is unclear because the Trump order provides no guidance. "If we are not going to take sea-level projections into account, then what are we going to do instead," he said in the interview.
This uncertainty may provide an opening for environmental and other groups to petition the courts to stop infrastructure projects in flood-prone areas.