Wednesday, March 1, 2017

Shale Law in the Spotlight: President Trump’s Use of Executive Orders and Presidential Memoranda to Impact Energy and Environmental Policy

Written by Chloe Marie – Research Fellow

Since he has taken office in late January 2017, President Donald Trump has been using several procedural mechanisms to revisit various energy and environmental policies that were put in place during the Obama Administration. In a prior Shale Law in the Spotlight article, we addressed the use of the Congressional Review Act to disapprove energy and environmental federal agency rules. This article will discuss President Donald Trump’s use of Executive Orders and Presidential Memoranda to implement policy.

On January 20, 2017, White House Chief of Staff, Reince Priebus, issued a Memorandum to the Heads of Executive Departments and Agencies requesting that federal agencies freeze any new or pending regulations. More precisely, federal agencies are to refrain from sending any new regulations to the Office of the Federal Register until such regulations have been reviewed by a designed person or new appointee. With regard to the regulations that have already been sent to – but not published in – the Federal Register, the departments or agencies concerned are to withdraw them. For the ones already published in the Federal Register, their effective date is to be postponed for 60 days from the date of Mr. Priebus’ memorandum.

Subsequently, President Donald Trump signed Executive Order No. 13766 expediting environmental reviews and approvals for high priority infrastructure projects on January 24, 2017. President Trump listed pipelines among those projects that are of a high priority for the nation. This executive order highlights that the delay to major infrastructure projects has resulted in increased costs to the community; thus, President Trump wrote that “[f]ederal infrastructure decisions should be accomplished with maximum efficiency and effectiveness, while also respecting property rights and protecting public safety and the environment.”

For this purpose, the executive order provides that once the infrastructure project is referred to the White House Council on Environmental Quality (CEQ) for environmental reviews and approvals, the CEQ has up to 30 days to decide whether the infrastructure project qualifies as a “high priority” infrastructure project. It also directs the Chairman of the CEQ to define expedited procedures and deadlines for such environmental reviews and approvals before adding that “all agencies shall give highest priority to completing such reviews and approvals by the established deadlines using all necessary and appropriate means.” 

On the same day, President Trump issued three other Memoranda, respectively addressing the use of locally sourced materials for pipeline construction and the prior administration’s decisions regarding the construction of the Dakota Access and Keystone XL pipelines.

In his memorandum regarding the Dakota Access pipeline, President Trump declared that he “believe[s] that construction and operation of lawfully permitted pipeline infrastructure serve the national interest,” and, thus, directed the U.S. Army Corps of Engineers to accelerate its review process for the construction and operation of the Dakota Access pipeline. Furthermore, President Trump requested the Corps to reconsider an earlier decision to not grant Dakota Access, LLC, an easement allowing the proposed pipeline route to cross under Lake Oahe in North Dakota.

In the memorandum relating to the Keystone XL pipeline, President Trump invited TransCanada Corporation to resubmit its application regarding construction of the pipeline to the Department of State for a presidential permit review. He also stated that the Final Supplemental EIS for the Keystone XL Project released in 2014 would be considered by the Department of State when reviewing TransCanada’s application for a presidential permit.

Finally in his third memorandum, President Trump announced that the Secretary of Commerce would develop a plan relating to U.S.-sourced materials for pipeline construction. He clearly stated that “all new pipelines, as well as retrofitted, repaired, or expanded pipelines, inside the borders of the United States, including portions of pipelines, use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law.” This plan should be made available in July 2017.

A few days later, on January 30, 2017, President Trump signed another Executive Order No. 13771 that is designed to reduce federal government regulations and their associated costs. The stated purpose of the executive order is to manage the direct expenditures of taxpayer dollars as well as the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. To this end, whenever federal executive departments or federal agencies enact a new regulation, two existing regulations have to be abolished.

In addition, Executive Order No. 13771 requires that federal agencies not generate any additional costs associated with new and repealed regulations for the 2017 fiscal year. Moreover, it subjects federal agencies to identify offsetting regulations for each new regulation that would increase incremental costs for fiscal year 2018. Agencies will be required to provide the Office of Management and Budget (OMB) the “best approximation of the total costs or savings associated with each new regulation or repealed regulation.” Also, the executive order directs the Director of OMB to establish a threshold of total incremental costs for all agencies when issuing or repealing regulations.

Based upon the actions taken during President Trump’s first month in office, it appears that there will be substantial changes in the direction of energy and environmental policies at the federal level in the coming months.  

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