Trump Executive Orders on Pipelines, CWA Praised; Court Challenges Coming

This article appears as published in Foster Report No. 3244

President Donald Trump issued two executive orders April 10 to try and improve pipeline development, and like many of the actions he has taken to promote U.S. energy resources, they will be challenged in court. State officials, including New York Governor Andrew Cuomo, environmental groups, and others vowed to try and halt the moves to build more pipelines without sufficient environmental protections.

New York is at the heart of the dispute, with its use of the Clean Water Act (CWA) and the authority to grant water quality certificates under Section 401 of the law. The state Department of Environmental Conservation has delayed and denied such certificate for several natural gas pipeline projects, and one of the executive orders tries to minimize states’ ability to take such moves.

Among other things, the order directs the Environmental Protection Agency to update guidance on CWA Section 401 and consult with states, relevant agencies, and executive departments to determine if provisions should be clarified to be consistent with the intent of the statutes. Outdated federal guidance and regulations under Section 401 of the law “are causing confusion and uncertainty and are hindering the development of energy infrastructure,” according to the order.

It calls on the EPA administrator to review provisions in the law and take into account the need to promote federal-state cooperation, the appropriate scope of water quality reviews, conditions that may be appropriate to include in a water quality certificate, expectations for the timing of reviews, and the nature of information states may need to act on an application for a water quality certificate.

Speaking in Crosby, Texas, on April 10, Trump signed the executive orders and praised those in the energy industry who produce and transport oil and natural gas. “We need help with New York,” he told the gathering, referring to New York blocking pipeline infrastructure to send natural gas to New England. “New York is hurting the country because they’re not allowing us to get those pipelines through, and that’s why they’re paying so much for their heating and all of the things that energy and our energy produces. So hopefully they can come on board and get in line with what’s happening.”

That is not likely to happen, as Cuomo issued a statement the same day calling the executive order “a gross overreach of federal authority” designed to undermine New York’s ability to protect its water and environment.

“States must have a role in the process for siting energy infrastructure like pipelines, and any efforts to curb this right to protect our residents will be fought tooth and nail,” Cuomo said. “Especially at a time when the federal government has abdicated its responsibility to protect our environment and public health, states like New York are on the front lines protecting our clean water and the public health.”

Several environmental groups said they expect to challenge the legality of the executive order, noting that they are reviewing the language and the instructions for different agencies. Greenpeace deemed the order “nothing but an attempt to trample people’s rights to protect their air, water, and climate from polluting oil and gas pipelines.”

Washington Governor Jay Inslee, who has made climate change a priority in his campaign for president, also said he would try and stop the executive orders from taking effect. In a joint statement with state Attorney General Bob Ferguson, Inslee said “we intend to challenge any attempt by the administration to illegally constrain Washington’s authority to protect our state’s natural resources.”

The same executive order directs the Department of Transportation (DOT) to update its safety regulations for LNG facilities because they were designed for small-scale peak shaving uses and not the large LNG export projects being built today. DOT is to reach a final rule within 13 months of the order to update the regulations and use “risk-based standards to the maximum extent possible.”

The order directs DOT to seek comment and propose a rule to allow LNG to be sent on rail cars within the U.S. That rule also should be completed within 13 months.

To improve investment opportunities within the energy sector, the order directs the Secretary of Labor to review and update the Employee Retirement Income Security Act of 1974 “to identify whether there are discernible trends with respect to such plans’ investments in the energy sector.”

The second executive order deals with pipeline and infrastructure that cross the U.S. border and are subject to presidential permits. Such permits are typically acted on by the President and the Secretary of State. The executive order would put the Secretary of State in an advisory and consultation role.

The executive order clarifies that any decision to issue or deny a permit will be made solely by the President, the White House said in a statement.

Department of Energy (DOE) Secretary Rick Perry was among those thanking Trump for taking the actions to expand the use of U.S. energy resources. “These Executive Orders implement a comprehensive whole-of-government approach to streamline the development of necessary energy infrastructure projects, and reduce existing barriers to achieving that goal,” Perry said.

Under the orders, DOE will work with DOT to submit a report to the president on the impacts of current limitations on the export of coal, oil, natural gas, and other domestic energy resources through the west Coast of the United States. It will also submit a report to the president on economic growth in the Appalachian region and the potential for petrochemical facilities and workforce development in the region.

Perry said DOE also will consult with DOT on a report “regarding the economic and other effects caused by the inability to transport sufficient quantities of natural gas and other domestic energy resources to the New England states and, as the Secretary of Transportation deems appropriate, to states in other regions of the nation. This report shall assess whether, and to what extent, state, local, tribal, or territorial actions have contributed to such effects.”

Republicans in Congress praised the move to enhance infrastructure development, as did numerous energy groups that included the Independent Petroleum Association of America, the Interstate Natural Gas Association of America (INGAA), the U.S. Energy Association, the American Petroleum Institute, LNG groups, and labor organizations.

The current process for pipeline development “has too often resulted in protracted reviews, stalled decision-making, and cancelled projects that increase costs for consumers. Today’s executive orders will strengthen the Clean Water Act by requiring federal agencies to review and make timely permitting decisions in compliance with the law,” said API President and CEO Mike Sommers.

INGAA is pleased that the Trump administration is building upon earlier actions to streamline the permitting process for pipeline applications and reviews, said Don Santa, president and CEO of INGAA. “Streamlining the process to ensure it is safe, comprehensive and predictable is a top priority, along with EPA clarifying Clean Water Act section 401 water quality certification requirements so that one state cannot interfere with interstate commerce,” Santa said, adding that INGAA is looking forward to learning more about the administration’s plans.

By Tom Tiernan

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