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Why It Matters
The president has the authority to grant transboundary permits for projects that cross international borders based on the inherent foreign affairs power the president holds by virtue of Art. II of the U.S. Constitution. The president can delegate some or all of this power to an agency.
If the president delegates the entire process to an agency, the permitting decision arguably becomes a final agency action, rather than a presidential action. This is important because final agency actions are subject to judicial review under the Administrative Procedure Act (APA) and must comply with statutes like the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA). Alternatively, the president is not an agency for purposes of the APA, so his decisions are not subject to judicial review, except for constitutionality, and his decisions do not need to comply with NEPA, ESA or other statutes.
History
Aug. 20, 1968 President Lyndon Johnson issues 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. This order delegates the process for granting executive permission for construction projects on the U.S. border to the Department of State. This includes “…pipelines, conveyer belts, and similar facilities for the exportation or importation of petroleum and petroleum products…to or from a foreign country.”
April 30, 2004 President George W. Bush issues Executive Order 13337 on the Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States. This order revises the Presidential permitting process “…to expedite reviews of permits as necessary to accelerate the completion of energy production and transmission projects…while maintaining safety, public health, and environmental protections….” The order also designates the State Department as the agency responsible for consulting with federal government officials, federal, state and local agencies, and foreign governments to obtain information needed to determine whether to issue a permit. It allows the State Department to issue permits if it determines that doing so would serve the national interest.
Trump Era
April 10, 2019 President Trump issues an Executive Order 13867: Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States. This order establishes a new process for issuing Presidential permits for cross-border infrastructure, including pipelines. It revokes previous executive orders 11423 and 13337 that provided a process for approving such projects and makes it clear that the president is the final decisionmaker on whether or not to issue a permit.
For More Information:
- See analysis by Climate, Clean Air, and Energy Fellow Caitlin McCoy on EO 13867 and the new presidential permit for the Keystone XL pipeline.
- See analysis by HLS Student Ari Sillman on Section 3 of of the energy infrastructure EO (“The Trump Administration’s Efforts to Restrict State Authority in the Water Quality Certification Process”)
- See analysis by Staff Attorney Hana Vizcarra on Section 5 of the energy infrastructure EO (the ESG section)
- See analysis by Electricity Law Initiative Director Ari Peskoe on Section 7 of the energy infrastructure EO (“Reports on Barriers to a National Energy Market”)