President Trump signed a pair of executive orders Wednesday that aim to speed approval and construction of fossil fuel projects, including the long-delayed Keystone XL pipeline, by limiting environmental reviews. While the measures are part of a broader effort to use his executive authority to push through oil, gas and coal development, they also mark a new attempt to shield the president’s actions from review by the courts.
One of the orders appears to target the Keystone XL pipeline in particular, declaring that the decision to permit infrastructure crossing international borders “shall be made solely by the President” rather than the State Department, to which previous administrations had delegated the authority. Trump issued exactly such a permit in March for Keystone XL, and both the permit and the new order appear to be attempts to sidestep a legal challenge and allow the project to proceed.
Critically, having the president issue the permit directly, rather than going through the State Department, could make it more difficult for environmental and indigenous groups to challenge cross-border permits under the National Environmental Policy Act, which subjects major federal agency actions to careful review.
The second order signed Wednesday aims to limit the ability of states to review and reject pipelines and other projects under a section of the Clean Water Act. States have used that law to slow or block several pipeline projects, as well as proposed terminals to export coal and natural gas. The order also directs the Transportation Department to update regulations for exporting liquified natural gas, an increasingly important product for the energy industry.
Trump’s orders drew wide condemnation from environmental groups.
“States must be able to protect communities from the polluting corporations that threaten them and their waterways,” said Michael Brune, executive director of the Sierra Club, in a statement. “The Sierra Club will fight these executive orders with every tool at our disposal.”
Rep. Frank Pallone, Jr., chairman of the House Energy and Commerce Committee, vowed to “fight this tooth and nail.”
The Western Governors’ Association, whose members include the Republican governors of the nation’s top energy-producing states, also questioned the move to limit states’ authority. It issued a statement saying the governors “have concerns” about the order but are ready to work with federal officials on the new guidelines.
Clearing the Way for Keystone XL
No project has symbolized the fight over the nation’s energy future more than the Keystone XL pipeline, which would carry oil from Canada’s tar sands to the U.S.
The pipeline, first proposed in 2008, drew protests and was eventually denied a border permit by the Obama administration. But Trump reversed that course shortly after taking office, and in 2017, the State Department approved a new permit for the pipeline to cross the border. Environmental groups sued, arguing the department had failed to conduct an updated environmental review. A federal judge agreed last year, ordering a new review and issuing an injunction to block construction until it was complete.
The permit that Trump issued last month, together with Wednesday’s order, is an attempt to sidestep the lawsuit and injunction.
On Monday, TransCanada, the company behind the pipeline, filed a motion seeking to have the case dismissed and the injunction lifted. The company asserted that the arguments against the original permit are moot now.
Because the new permit was issued as a presidential action, it may be harder for environmental groups to challenge in court.
“The president can act unilaterally and protect himself from the sort of scrutiny that judges would give to, say, the EPA,” said Joshua Galperin, an expert in environmental law at the University of Pittsburgh School of Law.
Galperin added that the decision to issue the permit as a presidential action is likely to withstand a legal challenge. “As much as I would personally like to come out against the president’s order, when it’s crossing an international border, that puts a lot of inherent authority in the president.”
Trump may not have to wait long to find out. Last week, two environmental groups sued the president and several other federal officials and agencies over the new permit, arguing that he lacks the authority to issue it.
Josh Axelrod, a manager of the Canada program at the Natural Resources Defense Council, which is part of the lawsuit challenging the 2017 permit, said the Trump administration was trying sidestep the courts and to shield the pipeline from meaningful review. “And that’s not in the interest of the public,” he said.
Even if the border permit withstands legal scrutiny, TransCanada would need to obtain separate permits from other federal agencies for crossing federal land and rivers along the route, and these permits can still be challenged in court no matter who issues the cross-border permit.
Presidential authority to issue border permits for pipelines is not conferred by any specific legislation, and is meant to assess whether projects are in the national interest, a vaguely defined standard. The authority, ostensibly based on the chief executive’s constitutional power over foreign affairs, has been upheld in lower courts but not expressly addressed by the Supreme Court.
Limiting State Delays Under Clean Water Act
The other order Trump signed Wednesday could have much broader impact, touching not only any interstate natural gas pipeline but major coal and gas export terminals, too.
The order targets part of the Clean Water Act—section 401—which gives states authority to authorize projects that have the potential to harm water quality. Supporters of more fossil fuel development have taken aim at this part of the law, arguing that states and environmental groups have used it inappropriately to delay or reject projects.
One example, which Trump mentioned in his announcement of the orders on Wednesday, involves a natural gas pipeline from Pennsylvania to New York, which received federal approval in 2014 but was denied by New York regulators in 2016. In February, a federal court ordered federal regulators to rehear a challenge brought by the company that wants to build the project.
Trump’s order directs the EPA to issue new guidance to states for how to implement the law.
Galperin said there’s no doubt states have a right under the act to review projects, but the guidance could try to limit the scope or timeline of such reviews in any number of ways.
“There’s lots of ways the executive can tweak around the edges,” he said.
Legislation introduced Tuesday by Sen. John Barrasso (R-Wyo.), a staunch supporter of the state’s fossil fuel industries, targets the same part of the law. The legislation would narrow the scope of what states can consider as part of the reviews, and it would shorten the time states have to tell applicants that their materials are incomplete.
States are generally supposed to complete the review within a year, but the process has taken longer in several cases. A recent court case over a hydropower project in California and Oregon, however, may set a stronger precedent limiting the reviews to a year, and it’s unclear if an executive order can shorten this any further.
Among the projects currently tied up in this process is the Jordan Cove liquid natural gas export terminal, in Oregon. The company behind the project applied to the state initially in October 2017.
In another case, Millennium Bulk Terminals proposed building a coal export facility on the Columbia River and applied for a water quality permit from Washington’s Department of Ecology in June 2016. When the state denied the permit in September 2017, it said the denial was based not only on water quality concerns but also on broader impacts including diesel pollution and increased traffic. The ability to look at these ancillary impacts could be restricted by new guidance.
Galperin said he has little doubt that any attempts to restrict states ability to review projects under the Clean Water Act would end up in court.
“There will definitely be more lawsuits,” he said.