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; and
  • 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.