Eager to jump-start the stalled Keystone XL oil pipeline and other energy projects, President Donald Trump has acted to increase executive power over pipelines and such infrastructure.
He issued a new permit for Keystone XL and signed an executive order clarifying that the president alone has the power to grant permits for cross-border projects such as pipelines.
A separate order makes it harder for states to block pipelines and other energy projects on the basis of environmental concerns.
This is the first time in over 50 years that decision-making on energy projects has been delegated to entities other than individual agencies.
Trump has shown a willingness to override his own agencies to accomplish his campaign promises. His actions, if upheld by the courts, could consolidate power over energy projects at the White House, increasing the influence of the president’s political advisers.
“Too often badly needed energy infrastructure is being held back by special interest groups, entrenched bureaucracies and radical activists,” Trump said Wednesday before signing the executive orders at an event in Texas.
Pipeline opponents claim Trump acted illegally. They have asked a federal court to block the new Keystone permit, arguing that it is an effort to get around an earlier court ruling.
But one legal expert said Trump’s approach might succeed.
“He has now created a whole new decision-making structure” for cross-border pipelines, said Richard Pierce, a law professor at George Washington University.
If the courts follow a 1992 Supreme Court ruling, they may find that action taken by the State Department in approving or rejecting the pipeline “is nonreviewable, because it doesn’t qualify as final agency action,” Pierce said.
Further, Trump’s decision would not be subject to review because of a separate law that declares the president is not an agency and therefore is not bound by rules that apply to agency actions.
“That’s a very clever approach that might well work,” Pierce said.
Holly Doremus, an environmental law professor at the University of California, Berkeley, claims Trump frequently seeks to stretch the limits of his power.
In the case of Keystone, Trump appears to be arguing that the new presidential permit, issued March 29, gets around restrictions under the National Environmental Policy Act or other laws, because the statutes apply to executive-branch agencies but not to the president, Doremus said.
“If the president is the only discretionary decision maker, NEPA simply does not apply,” she said.
While Trump’s theory is plausible, it is unclear who is the ultimate decision-maker on Keystone XL, Doremus said. The pipeline would ship crude oil from the tar sands of western Canada to U.S. refineries along the Gulf of Mexico.
Both a 2015 rejection of the project by the Obama administration and a 2017 approval by Trump were issued by the State Department under terms of a 2004 executive order that delegated presidential authority for cross-border projects to that agency.
Trump’s executive order revokes the 2004 order, which was issued by President George W. Bush and was an extension of an executive order issued by President Lyndon B. Johnson in 1968.
In November, U.S. District Judge Brian Morris in Montana ruled that the Trump administration did not fully consider potential oil spills and other impacts when it approved the pipeline in 2017. Morris ordered a new environmental review of the pipeline.
The White House said the new permit issued by Trump “dispels any uncertainty” about the long-delayed project, which was first proposed a decade ago by Calgary-based TransCanada.
Trump’s move on Keystone XL reinforces the idea that “the presidential permit is indeed an exercise of presidential authority that is not subject to judicial review,” according to the White House.
Under the new order, federal officials still would conduct environmental reviews of the project, but they would be carried out by agencies other than the State Department, the White House said.
TransCanada spokesman Matthew John said the administration’s action “clearly demonstrates to the courts that the permit is (the) product of presidential decision-making and should not be subject to additional environmental review.”
Kathryn Watts, a law professor at the University of Washington, said it’s unclear what happens next. Trump’s permit wades into “uncharted, unsettled” legal territory, she said.
The Western Journal has reviewed this Associated Press story and may have altered it prior to publication to ensure that it meets our editorial standards.
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