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Executive Orders Aim to Streamline Energy Infrastructure Projects

On April 10, 2019, President Trump signed two executive orders intended to address a range of legal and procedural hurdles commonly facing infrastructure projects, particularly in the energy sector. Most notably, the executive orders require the U.S. Environmental Protection Agency (EPA) to review and revise Section 401 water quality certification procedures and increase the president’s direct role in permitting cross-border projects.

In recent years, states and tribes have increasingly utilized Section 401 of the Clean Water Act, 33 U.S.C. § 1341, to delay, condition, or deny permits and licenses for projects within their borders that may violate established water quality standards. Executive Order 13868 directs EPA to review these water quality certification procedures in consultation with states, tribes, and other federal agencies, with a focus on:

  • Promoting federal-state cooperation.
  • Clarifying the appropriate scope of water quality reviews.
  • Identifying appropriate conditions for certifications.
  • Establishing reasonable review times for certifications.
  • Delineating the nature and scope of information that states and tribes may need in acting promptly on a certification request.

The executive order contemplates several forthcoming EPA actions with aggressive deadlines. Within 60 days, EPA must issue new water quality certification guidance to states, tribes, and federal agencies. Within 120 days, EPA must publish a proposed rule revising the existing regulations that implement Section 401. Other federal agencies that issue permits or licenses subject to Section 401 certification requirements must then revise their regulations and guidance to conform to EPA’s actions. These actions will afford numerous commenting opportunities and, given the executive order’s focus on “Promoting Energy Infrastructure,” the agencies likely will be interested in specific ideas, experiences, and feedback of project proponents.

Executive Order 13868 is not limited to Section 401. It further directs the U.S. Department of Transportation (DOT) to propose a rule newly allowing transport of liquefied natural gas (LNG) in rail tank cars. DOT must also revise its safety regulations for LNG facilities to reflect modern industry practices. Additionally, the executive order calls for scrutiny of retirement funds’ divestments from the energy sector. It also aims to facilitate renewals and reauthorizations of energy rights-of-way and similar authorizations. Lastly, it seeks information from agencies on barriers to a national energy market, intergovernmental assistance, and opportunities for economic growth in the Appalachian region.

Executive Order 13867 aims to end the multi-year reviews of cross-border infrastructure, such as pipelines and bridges, principally administered by the State Department. These projects have attracted national attention and controversy, as well as litigation. The Secretary of State will continue to receive all applications for such cross-border projects but will face a highly aggressive 60-day deadline to complete its review and provide recommendations to the president for a final permitting decision. The executive order stipulates that the State Department must revise its regulations to reflect these requirements by May 29, 2020. Because presidential actions are not subject to National Environmental Policy Act (NEPA) review, and to meet the tight deadline, such projects might undergo less review than they do today, which in turn may foster more litigation.

Overall, these executive orders afford opportunities to reduce barriers to energy infrastructure projects and improve the efficiency of the permitting process. Whether they yield tangible results remains to be seen. The substantive details and any legal challenges will emerge through the various agency actions implementing these executive orders, which the regulated community should follow and closely participate in. 

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 115



About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies.

Parker brings a balanced approach to working on high profile projects to meet the objectives of developers and the legal demands of state and federal regulators. Clients involve him at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions. In all cases, Parker’s goal is to help his clients complete legally-defensible projects on time and on budget.

Before joining B&D, Parker clerked at the White House Council on Environmental Quality. He also is a professionally-trained wetlands ecologist and has years of experience identifying wetlands, obtaining jurisdictional determinations from the U.S. Army Corps of Engineers, surveying for protected species, and drafting NEPA documents.

Katrina Krebs Environmental Litigation Attorney Beveridge & Diamond New York, NY

A careful listener and creative problem solver, Katrina identifies client needs to effectively advocate for their position.

Katrina brings a life-long interest in the natural environment to her law practice, which is focused on addressing National Environmental Policy Act (NEPA) issues, wetlands regulation, federal species protection laws, land use law, and litigation.

Prior to law school, Katrina worked for the U.S. Fish & Wildlife Service on national wildlife refuges in Arizona, Colorado, and Wyoming. As a Park Ranger, she educated visitors and...