President Trump issued two executive orders last month with the intent of speeding up the pipeline permitting process. The orders are the “Promoting Energy Infrastructure and Economic Growth” and the “Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the U.S.” The first attempts to stop state governments from prohibiting pipeline development by applying authority created by Section 401 of the Clean Water Act. The second states that the authority to give presidential permits for trans-border pipelines is held by the President and is no longer delegated to the State Department.
The orders appear consistent with the President’s often professed goal of reducing approval times for proposed projects.
Though the Promoting Energy Infrastructure order contains a variety of points designed to promote the Administration’s energy policy, its chief purpose is to curtail the ability of state governments to use Section 401 to block energy projects. Under the section, corporations need state certifications before constructing energy projects such as pipelines within the state’s borders. This need for certification is persists even when federal authority for the project has been granted.
A recent trend involving state activity around Section 401 has been the denial of energy permits on the grounds of water quality. New York state has denied requests to approve several pipelines under 401 for example. A coal export terminal proposed in Washington state was also denied on Section 401 grounds.
Primarily, the order instructs the Environmental Protection Agency (“EPA”) to revise its guidance to states regarding Section 401. Specifically, the order instructs the EPA in the following ways:
– Must consult with states, tribes, and federal agencies concerning existing guidance on Section 401, taking into account appropriate inclusion factors for certification, and the scope of information necessary for states and tribes need to act on a request
– Must issue new guidance within 60 days of the order
– Must publish the proposed revisions within 120 days
– Must finalize new rules within 13 months of the order
– After finalization of the rules, must conduct interagency review with each agency that issues 401 permits
Though the text of the order is unambiguous, and the timelines for revision and implementation are clear and arguably aggressive, it’s still uncertain the extent to which the order can shift existing regulatory processes. The power of the state to review pipeline permits under 401 is statutory. Therefore, neither an executive order or EPA rules can shift the law. Congress can materially affect the statutes which create the power of state review under Section 401, but no legislation currently proposed is likely to interfere with the statute anytime soon.
The full extent of the President’s order will have to be evaluated at a later date. However, landowners in the path of proposed pipelines restricted by state approval under Section 401 may experience a shift in the statute’s implementation fairly soon.
Written by Christopher Chan