On Tuesday, January 24, 2017, President Trump issued three presidential memorandums and one Executive Order (EO) that collectively may change the federal approach to permitting and constructing energy pipelines and other infrastructure projects in the United States. Two memorandums overrule decisions by the Obama administration not to permit construction of the U.S. portion of TransCanada’s Keystone XL Pipeline, as well as a section of the Dakota Access Pipeline (DAPL) that would cross under Lake Oahe, a water source for the Standing Rock Sioux Reservation in North Dakota.
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The third memorandum promotes the use of U.S. equipment and materials when constructing U.S. pipelines. The EO announced establishment of a framework for environmental reviews and approvals of high-priority infrastructure projects, including pipelines.
A fourth memorandum also issued starts a process that will lead to streamlined permitting and reduced regulations for domestic manufacturing.
Keystone XL
The memorandum invites TransCanada to “promptly resubmit” its application to the Department of State for a Presidential Permit for the construction and operation of the Keystone XL Pipeline. The planned pipeline is a 1,100-mile-project that would connect oil production in Alberta, Canada, to U.S. refineries. Before approving a Presidential Permit, the Department of State must determine if an international project that crosses into the United States serves the national interests of the United States. TransCanada’s previous permit application for the pipeline was denied in November 2015 by then Secretary of State John Kerry.
The Trump memorandum directs the secretary of state to reach a final permitting determination, including a final decision as to any conditions on issuance of the permit that are necessary or appropriate to serve the national interest, within 60 days of TransCanada’s resubmission of the permit application. Other agencies, including the Department of the Interior and the U.S. Army Corps of Engineers (Corps) are also directed to complete expedited reviews of the project and “approve as warranted.”
Following release of the memorandum, TransCanada announced that it would begin work on a new application for a Presidential Permit.
DAPL
This pipeline, also 1,100 miles long, is intended to carry about 500,000 barrels of crude oil per day from the Bakken and Three Forks oil production areas in North Dakota to oil markets in the United States. About 90 percent of the project is complete. The Corps must grant an easement for any project that crosses a U.S. water. On December 5, 2016, the Corps announced that it was not approving the easement requested by the project developer, Dakota Access, LLC., and would be considering new routes for the portion that would pass within one-half mile of the Standing Rock Sioux Reservation. The Corps also said the feasibility of alternative routes would be best explored through an Environmental Impact Statement (EIS) and public input and analysis.
The president’s memorandum instructs the Corps to review and approve, in an expedited manner, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross federal areas, consider rescinding or modifying the plan to prepare an EIS for the project, and consider the adequacy of the environmental assessment issued in July 2016 for the DAPL as satisfying all applicable requirements of the National Environmental Policy Act.
High-Priority Infrastructure Projects
The EO directs that upon receipt of a request to construct an infrastructure project (e.g., highway, bridge, tunnel, electrical grid, port, water system, airport, railway, or pipeline), the White House Council on Environmental Quality (CEQ) must, within 30 days, decide whether the project qualifies as a “high-priority” infrastructure project. Should the project be so designated, all relevant federal agencies must undertake expedited procedures and meet expedited deadlines for completion of environmental reviews and approvals for such projects.
Construction of American Pipelines
The secretary of commerce is directed to consult with executive departments and agencies in the development of a plan under which all new pipelines, as well as retrofitted, repaired, or expanded pipelines inside the borders of the United States, use materials and equipment produced in the United States to the maximum extent possible and to the extent permitted by law. The plan must be submitted to the president within 180 days.
Reducing Regulatory Burden
Executive departments and agencies are directed to support the expansion of manufacturing in the United States through expedited reviews and approvals of proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing.
Also, within 60 days after consulting with stakeholders and coordinating with other federal agencies (including, but not limited to, the secretaries of agriculture and energy, the administrator of the EPA, the director of the Office of Management and Budget, and the administrator of the Small Business Administration), the secretary of commerce must a report to the president, setting forth a plan for meeting the expediting and regulatory reduction goals. The memorandum states that the report should identify priority actions, as well as recommended deadlines for completing actions. The report also may include recommendations for any necessary changes to existing regulations or statutes as well as actions to change policies, practices, or procedures that can be taken immediately under existing authority.
The texts of the memorandums and EO are available here.