Penn State Shale Law Blog: Shale Law in the Spotlight – President Trump’s Executive Order on the Issuance of Permits for Cross-Border Infrastructure Projects

Written by Chloe Marie – Research Specialist

On April 10, 2019, President Donald Trump issued two executive orders, both addressing the energy infrastructure sector and providing direction on actions required to further expand it. In our previous Shale Law in the Spotlight article, we discussed the Executive Order on Promoting Energy Infrastructure and Economic Growth. In this Shale Law in the Spotlight article, we will discuss the Executive Order on the Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States.

In this second energy-related Executive Order issued on April 10, President Donald Trump indicated a desire to simplify and speed up the approval process relating to the issuance of Presidential permits for cross-border infrastructure projects. According to President Trump, “[o]ver the course of several decades, executive actions, Federal regulations, and policies of executive departments and agencies … related to the process of reviewing applications for Presidential permits, and issuing or denying such permits, have unnecessarily complicated the Presidential permitting process, thereby hindering the economic development of the United States and undermining the efforts of the United States to foster goodwill and mutually productive economic exchanges with its neighboring countries.” As such, President Trump directed that the review process be amended, and he declared that prior Executive Orders addressing this matter – issued in 2004 and 1968 – were revoked.

Two main highlights characterize this second energy-related Executive Order:

First, the Executive Order provides that the processing for obtaining a presidential permit for the construction, connection, operation, or maintenance of cross-border infrastructure projects located at the international boundaries of the United States must be completed within 60 days of the receipt of the permit application. These cross-border infrastructure projects include pipelines, pipe conveyor belts, land transport facilities, bridges, and any similar facilities intended to export or import products to or from a foreign country.

Once an application is received, the Secretary of State is tasked to provide advice and guidance on whether the President should request an opinion from any relevant agency head regarding the permit application. In reviewing each application, the Secretary also may obtain the advice of the state, tribal, and local government officials as well as foreign governments. Opinions and advice, if requested, must be rendered within 30 days following the request date, unless the President decides otherwise. At the conclusion of this review, the Secretary of State shall provide a written opinion to the President advising whether the project would or would not serve the foreign policy interests of the United States. Regardless of the Secretary of State’s opinion on the impact of the project, the decision regarding the presidential permit application lies solely with the President.

Second, the Secretary of State is directed to revise and amend the relevant Department of State regulations to bring them into compliance with the directives of this Executive Order no later than May 29, 2020. In line with these commitments, President Trump rescinded Executive Order 13337 dated April 2004 regarding the issuance of permits with respect to certain energy-related facilities and land transportation crossings on the international boundaries of the United States, issued by President George W. Bush in April 2004 as well as Executive Order 11423 providing for the performance of certain functions heretofore performed by the President with respect to certain facilities constructed and maintained on the Borders of the United States, issued by President Lyndon B. Johnson in August 1968.

The Executive Order clarifies that all presidential permits previously issued for cross-border infrastructure projects remain in full force and effect in accordance with their terms.

References:

Executive Order on the Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States, White House (April 10, 2019)

Executive Order on the Issuance of Permits with Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States, White House (April 30, 2004)

Executive Order on Providing for the Performance of Certain Functions Heretofore Performed by the President with Respect to Certain Facilities Constructed and Maintained on the Borders of the United States, White House (August 16, 1968)