² US v. Oakland Cannabis Buyers' Cooperative, 532 US 483, 491 (2001).

³ Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 708 (DC Cir. 2007).

⁴ 40 CFR 1506.11 states,

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

⁵ See the Web site for the National Environmental Policy Act, http://ceq.hss.doe.gov/nepa/eis/Alternative_Arrangements_Chart_092908.pdf.

⁶ See NRDC v. Winter, 518 F.3d 658, 682 (9th Cir. 2008). As the district court pointed out, the initial proposed version of the regulation required an agency “proposing to take” an emergency action to consult with the CEQ regarding alternative arrangements. See Proposed Implementation of Procedural Provisions, 43 Fed. Reg. 25230, 25243 (June 9, 1978). However, the drafters changed “proposing to take” to “taking” in order to remove the inference that consultation must necessarily precede agency action because “such a requirement might be impractical in emergency circumstances and could defeat the purpose of the section” [Implementation of Procedural Provisions: Final Regulations, 43 Fed. Reg. 55978, 55988 (November 29, 1978)].

⁷ The US District Court for the Central District of California found in NRDC v. Winter, 527 F. Supp. 1216 (CD Cal. 2008) found that “emergency circumstances” in the CEQ regulations refer to a sudden or unexpected occurrence or situation that demands unusual or immediate action. Based on this interpretation, the district court found against the Navy because the Navy's alternative arrangements were made for a situation that was the agency's own creation and the injunction against the Navy's exercises was not a sudden or unanticipated event. The US Court of Appeals for the Ninth Circuit in NRDC v. Winter, 518 F.3d at 683, upheld the district court's interpretation. The US Supreme Court, however, reversed the decision to issue an injunction to the Navy's exercises on balance of the equities grounds in Winter v. NRDC, 129 S. Ct. 365 (2009) without deciding whether the emergency circumstances interpretation was correct. Thus, it is unclear whether the district court's interpretation remains valid as dicta.

⁸ CEQ, Memorandum for Federal NEPA Contacts: Emergency Actions and NEPA (September 2005), http://ceq.hss.doe.gov/nepa/regs/Memo_to_NEPA_Contacts_September_8_05.pdf.

⁹ CEQ, Attachment 2: Preparing Focused, Concise and Timely Environmental Assessments, http://ceq.hss.doe.gov/nepa/regs/Preparing_Focused_Concise_and_Timely_EAs.pdf.

¹⁰ CEQ, Memorandum for Heads of Federal Departments and Agencies: Emergencies and the National Environmental Policy Act (May 2010), http://ceq.hss.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.

¹¹ 44 CFR 10.11 states,

In the event of an emergency, the Regional Administrator may be required to take immediate action with significant environmental impact. The Regional Administrator shall notify the Environmental Officer of the emergency action at the earliest possible time so that the Environmental Officer may consult with the Council on Environmental Quality. In no event shall any Regional Administrator delay an emergency action necessary to the preservation of human life for the purpose of complying with the provision of this directive or the CEQ regulations.

¹² 42 USC 5159 states,

An action which is taken or assistance which is provided pursuant to section 402, 403, 406, 407, or 502, including such assistance provided pursuant to the procedures provided for in section 422, which has the effect of restoring a facility substantially to its conditions prior to the disaster or emergency, shall not be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. Nothing in this section shall alter or affect the applicability of the National Environmental Policy Act of 1969 to other Federal actions taken under this Act or under any other provision of law.

¹³ 16 USC 470h-2(j) states,

The Secretary shall promulgate regulations under which the requirements of this section may be waived in whole or in part in the event of a major disaster or an imminent threat to the national security.

¹⁴ 36 CFR 800.12 states,

1. (a)

   (a) Agency procedures. The agency official, in consultation with the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian organizations, and the Council, is encouraged to develop procedures for taking historic properties into account during operations which respond to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or which respond to other immediate threats to life or property. If approved by the Council, the procedures shall govern the agency's historic preservation responsibilities during any disaster or emergency in lieu of §§ 800.3 through 800.6.

2. (b)

   (b) Alternatives to agency procedures. In the event an agency official proposes an emergency undertaking as an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or another immediate threat to life or property, and the agency has not developed procedures pursuant to paragraph (a) of this section, the agency official may comply with section 106 by:

   1. (1)

      (1) Following a programmatic agreement developed pursuant to § 800.14(b) that contains specific provisions for dealing with historic properties in emergency situations; or

   2. (2)

      (2) Notifying the Council, the appropriate SHPO/THPO and any Indian tribe or Native Hawaiian organization that may attach religious and cultural significance to historic properties likely to be affected prior to the undertaking and affording them an opportunity to comment within seven days of notification. If the agency official determines that circumstances do not permit seven days for comment, the agency official shall notify the Council, the SHPO/THPO and the Indian tribe or Native Hawaiian organization and invite any comments within the time available.

3. (c)

   (c) Local governments responsible for section 106 compliance. When a local government official serves as the agency official for section 106 compliance, paragraphs (a) and (b) of this section also apply to an imminent threat to public health or safety as a result of a natural disaster or emergency declared by a local government's chief executive officer or legislative body, provided that if the Council or SHPO/THPO objects to the proposed action within seven days, the agency official shall comply with §§ 800.3 through 800.6.

4. (d)

   (d) Applicability. This section applies only to undertakings that will be implemented within 30 days after the disaster or emergency has been formally declared by the appropriate authority. An agency may request an extension of the period of applicability from the Council prior to the expiration of the 30 days. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of section 106 and this part.

¹⁵ 16 USC 1536(p) provides

In any area which has been declared by the President to be a major disaster area under the Disaster Relief and Emergency Assistance Act, the President is authorized to make the determinations required by subsections (g) and (h) of this section for any project for the repair or replacement of a public facility substantially as it existed prior to the disaster under section 405 or 406 of the Disaster Relief and Emergency Assistance Act, and which the President determines (1) is necessary to prevent the recurrence of such a natural disaster and to reduce the potential loss of human life, and (2) to involve an emergency situation which does not allow the ordinary procedures of this section to be followed. Notwithstanding any other provision of this section, the Committee shall accept the determinations of the President under this subsection.

¹⁶ 50 CFR 402.05 states,

1. (a)

   (a) Where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of sections 7(a)–(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.

2. (b)

   (b) Formal consultation shall be initiated as soon as practicable after the emergency is under control. The Federal agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. The Service will evaluate such information and issue a biological opinion including the information and recommendations given during the emergency consultation.

¹⁷ 40 CFR 51.853 states,

1. (d)

   (d) Notwithstanding the other requirements of this subpart, a conformity determination is not required for the following Federal actions (or portion thereof) …

   1. (2)

      (2) Actions in response to emergencies or natural disasters such as hurricanes, earthquakes, etc., which are commenced on the order of hours or days after the emergency or disaster and, if applicable, which meet the requirements of paragraph (e) of this section.

2. (e)

   (e) Federal actions which are part of a continuing response to an emergency or disaster under paragraph (d)(2) of this section and which are to be taken more than 6 months after the commencement of the response to the emergency or disaster under paragraph (d)(2) of this section are exempt from the requirements of this subpart only if:

   1. (1)

      (1) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or

   2. (2)

      (2) For actions which are to be taken after those actions covered by paragraph (e)(1) of this section, the Federal agency makes a new determination as provided in paragraph (e)(1) of this section.

¹⁸ 16 USC 1456(c)(1)(B) states,

After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, United States Code, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subparagraph (A), and certification by the Secretary that mediation under subsection (h) is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States. No such exemption shall be granted on the basis of a lack of appropriations unless the President has specifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations.

¹⁹ 16 USC 1456(c)(3)(A) and (d).

²⁰ 15 CFR 930.32(b) states,

A Federal agency may deviate from full consistency with an approved management program when such deviation is justified because of an emergency or other similar unforeseen circumstance (“exigent circumstance”), which presents the Federal agency with a substantial obstacle that prevents complete adherence to the approved program. Any deviation shall be the minimum necessary to address the exigent circumstance. Federal agencies shall carry out their activities consistent to the maximum extent practicable with the enforceable policies of a management program, to the extent that the exigent circumstance allows. Federal agencies shall consult with State agencies to the extent that an exigent circumstance allows and shall attempt to seek State agency concurrence prior to addressing the exigent circumstance. Once the exigent circumstances have passed, and if the Federal agency is still carrying out an activity with coastal effects, Federal agencies shall comply with all applicable provisions of this subpart to ensure that the activity is consistent to the maximum extent practicable with the enforceable policies of management programs. Once the Federal agency has addressed the exigent circumstance or completed its emergency response activities, it shall provide the State agency with a description of its actions and their coastal effects.

²¹ See 16 USC 3505(a)(6)(E).

²² See 7 USC 4208.

²³ See 42 USC 4903(b).

²⁴ See 50 CFR 600.920(a).

²⁵ See 40 CFR 122.41(n) allowing for unintentional and temporary noncompliance with permit conditions for exceptional incidents as long as remedial actions are taken.

²⁶ See 33 CFR 337.7 establishing an emergency procedure for emergency actions requiring section 404 permits.

²⁷ See 42 USC 7418 allowing the president to exempt any emission source if it is in the paramount interest of the US.

²⁸ See 42 USC 7412(i)(4) allowing the president to exempt a stationary source from the requirements for two years if the technology is not available and it is in the national interest of the US.

²⁹ See 40 CFR 270.61 allowing for 90-day emergency permits during situations of imminent and substantial endangerment to human health or environment and 40 CFR 264.1(g)(8) for persons engaging in immediate response of a discharge of a hazardous waste.

³⁰ FEMA sought public comments for one of these initiatives—the National Disaster Recovery Framework—through a Federal Register notice at 75 Fed. Reg. 6681 (February 2010).

³¹ See http://www.whitehouse.gov/administration/eop/ceq/initiatives/gulfcoast and Roadmap for Restoring Ecosystem Resiliency and Sustainability at http://www.whitehouse.gov/sites/default/files/microsites/ceq/100303-gulf-coast-roadmap.pdf.

³² See the Web site of Senator Mary Landrieu, http://landrieu.senate.gov/mediacenter/pressreleases/05-12-2010-2.cfm.