Brave New World: Understanding the Department of the Interior’s New Approach to Emergency Permitting Procedures for Energy Projects

On April 23, 2025, the Department of the Interior announced that certain energy related projects are eligible for novel, expedited alternative permitting timelines and processes under the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), and National Historic Preservation Act (NHPA). Below, we trace these new processes and their implications for sponsors of energy projects that depend on leases, permits, or other discretionary authorizations from the Department. The upshot: These procedures may provide significant relief from permitting delays but are untested, and project proponents should approach the procedures with care to minimize exposure to short- and long-term risk.

Background

On January 20, 2025, President Trump signed Executive Order (EO) 14156, which declared a “National Energy Emergency” under the National Emergencies Act. The EO concludes that the “energy and critical minerals . . . leasing, development, production, transportation, refining, and generation capacity of the United States are all . . . inadequate to meet [the] Nation’s needs,” and that this shortfall is the product of unspecified “policies of the [outgoing Biden] administration.”

On April 23, the Department of the Interior announced a suite of expedited permitting processes explicitly designed to address the emergency: “alternative” ESA and NEPA procedures, and “emergency” NHPA procedures. The procedures encompass projects “that seek to identify, lease, develop, produce, transport, refine, or generate energy resources ”¹ and “for which the project applicant(s) have submitted plans of operations, applications for permits to drill, or other applications.” Use of each procedure is voluntary, and must be elected by a project proponent in writing.

Once invoked, the procedures empower the Department to move briskly through environmental analysis. The NEPA procedures contemplate publication of an Environmental Assessment within 14 days of a completed project application, and, for projects with significant impacts, an Environmental Impact Statement within 28 days of publication of a notice of intent (including a concurrent public comment period, estimated at 10 days). The ESA and NHPA procedures appear to waive the entirety of the ordinary consultation regimes under those statutes, and instead leave appropriate consultation to the Department’s discretion on an ad hoc basis. The potential delta between “ordinary” and “substitute” procedures could be massive: The preamble to the ESA’s emergency regulations, for example, contemplates swapping the ordinary consultation process for something as simple as a phone call.²

Promises and Perils of Emergency Permitting

The pace of federal infrastructure permitting has long been a target of reasonable criticism, and commentors of various stripes have recently levied specific attacks on the timelines attendant to environmental analysis. If the Department’s effort is successful, it will address some of these concerns by radically reducing federal approval timelines — the Fiscal Responsibility Act, passed only two years ago, contemplates that Environmental Impact Statements will be approved in two years, not a few weeks — and will provide a blueprint for similar reforms across the federal government and in future administrations. And because there is sparse caselaw on emergency procedures under each of the three relevant statutes, the Department is writing on a nearly blank legal slate.

But only nearly blank: What caselaw does exist is arguably in tension with the Department’s efforts, which will rise and fall on a handful of issues we outline below.

The meaning of “emergency”

Each of the new procedures sounds in regulatory authority that explicitly authorizes alternative procedures in the event of emergencies.³ These regulations contemplate “emergencies” that, as one court has put it, are “unpredictable or unexpected.”⁴ Many of the regulations further specify procedures an agency should take after the emergency ends, arguably implying that the subject “emergencies” should be reasonably short, or at least finite.

The emergency articulated by the Department and its predicate EO — a type of slow-motion, economy-wide policy failure — will likely be challenged as materially different than the floods, forest fires, and similar circumstances where agencies have previously sought these alternative procedures. Indeed, the indefinite duration of the president’s declared emergency and the Department’s new procedures may fuel arguments that the procedures are “rules” within the meaning of the Administrative Procedures Act, and were unlawfully promulgated absent required notice and comment.

Moreover, none of the statutes at issue contemplate a general category of emergency analysis, and one court has characterized the ESA’s emergency consultation regulation as filling a “gap” in that statute.⁵ In the wake of the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, reviewing courts will not defer to the Department’s filling of such gaps, and will themselves determine whether and to what extent procedures for emergency consultation are proper.⁶ There is no promise, in other words, that the Department’s reading of the ESA, NEPA, and the NHPA will stick.

Lack of safe harbors

The regulation providing for emergency ESA consultation does not explicitly call for the production, during the emergency itself, of an opinion and Incidental Take Statement of the type that would ordinarily inoculate a federal agency and project proponent against suits alleging a violation of the ESA’s prohibition on take.⁷ Instead, the regulation appears to defer that opinion until after the emergency has passed, and one court has determined that emergency consultation is incompatible with the production of such an opinion during the emergency.⁸ In short: If a project harms listed species, an agency or applicant relying on the Department’s emergency procedures may be vulnerable to allegations that they have violated the ESA’s substantive prohibitions, and may encounter difficulty relying on an Incidental Take Statement as a defense.

Practical concerns

The Department’s procedures apply to projects that ordinarily prompt entire volumes of environmental analysis, such as mine plans and leases and permitting for conventional energy projects. Apart from the legal issues outlined above, it is an open question whether the Department can meet its own benchmarks through ad hoc procedures and on the timelines it contemplates. The Department is reportedly exploring the use of artificial intelligence to accelerate its work, but the technology’s application to the mixed legal and scientific task of permitting would raise its own suite of questions. And looming above all of these uncertainties are judicial doctrines addressing remedies for inadequate environmental analysis, which can be punishing if a court deems an agency to have acted hastily or cavalierly.

Conclusion

Emergency permitting provides significant opportunities for project proponents, but should be undertaken strategically to minimize potential downside risks. Proponents of energy projects should work closely with relevant permitting agencies — and with counsel — to ensure that utilization of the Department’s new procedures provides the best chance at project approval and defense.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.