Perspective: Impact of Trump’s Executive Orders Unclear
(P&GJ) – The executive orders signed Wednesday by President Trump are intended to make it easier for companies to build oil and gas pipelines, but experts aren’t sure yet if they will achieve their goal.
"The executive orders signed by President Trump direct various agencies of the federal government to expedite the construction of energy infrastructure. However, it is unclear how much impact these executive orders will have on the development of infrastructure," said Fred Jauss, partner at the international law firm Dorsey & Whitney and former attorney for the Federal Energy Regulatory Commission (FERC).
One executive order directs a number of changes in federal regulations implementing the Clean Water Act, Department of Transportation LNG safety regulations, and federal right-of-way renewals in order to expedite construction of energy infrastructure.
“Although the executive order paints states and local authorities as responsible for delays in permitting, the executive order cannot change the role of the states in the Clean Water Act,” said Jauss, an expert in licensing and permits who has represented energy clients in regulatory matters before utility commissions in California, Alaska and other states. “The Clean Water Act is built in part on cooperative federalism between the states and the Federal government.”
Section 401 of the Clean Water Act requires applicants for a federal permit to obtain certification from a state that the proposed project complies with state water quality standards. This gives states the ability to "veto" a proposed project or impose conditions upon this issuance of the permit. This state certification process has been a critical battleground in the development of new infrastructure.
“The executive order cannot change this requirement for state certification. Such a change would require an act of Congress,” Jauss said. “However, the executive order is designed to amplify pressure on state governments that are not providing certifications. Implementation of this order will undoubtedly end up in the courts."
The other executive order clarifies that authority to grant presidential permit cross-border infrastructure lies solely with the President, and the State Department, which had previously issued the permits, is relegated to an advisory role.
“While this order could speed the issuance of a presidential permit, it does not impact the timing or the issuance of the multitudes of state and federal permits and authorizations that are required to construct a major piece of cross-border infrastructure," Jauss said.
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