Keystone XL Pipeline – Executive Orders

Seal of the President of the United StatesWhat does a 1953 Presidential executive order issued by Dwight D. Eisenhower have to do with the approval of the Keystone XL Pipeline project?

The proposed Keystone XL Pipeline would cross the U.S.-Canada border in Montana and thus requires permission in the form of a Presidential permit.

Readers of the post entitled, Keystone XL Pipeline – Presidential Permit, learned about the Presidential permit procedure for border-crossing oil pipelines. This post will explore the role played by Presidential executive orders in the Presidential permit process.

First, let’s get a general understanding of Presidential executive orders and proclamations.

What are Presidential Executive Orders and Proclamations?

The Constitution of the United States does not define executive orders or proclamations and there is no specific provision that authorizes the President to issue them. However, there is a 225-year tradition of U.S. Presidents issuing executive orders and proclamations dating back to when George Washington was President.

U.S. Constitution Page 1Presidents derive their authority from Article II of the U.S. Constitution that states “the executive power shall be vested in a President of the United States,” “the President shall be Commander in Chief of the Army and Navy of the United States,” and “he shall take care that the laws be faithfully executed.”

Presidents may amend or revoke executive orders and proclamations issued by prior Presidents. In some circumstances, the Judiciary or Congress may amend or repeal executive orders and proclamations.

Presidential Executive Orders

Executive orders generally affect the management or operations of the federal government and govern actions by federal officials and agencies. Below is an example.

Executive Order 13653 – Preparing the United States for the Impacts of Climate Change, was issued by President Barack Obama on November 1, 2013. This executive order built on several other executive orders, directed federal agencies to take certain actions, established a council, terminated a task force, and established a task force.

Presidential Proclamations

Proclamations usually affect actions by private individuals and since the President does not have power or authority over individual citizens (unless by the Constitution or a statute), proclamations are not legally binding and are voluntary. Below is an example.

Proclamation 0932 – National Energy Action Month, 2013, was issued by President Barack Obama on September 30, 2013. In this proclamation, the President proclaimed October 2013 as National Energy Action Month and called on U.S. citizens to work together to achieve energy security and build a clean energy economy.

How Do Presidential Executive Orders Affect the Presidential Permit Process?

Presidential executive orders (EOs) sometimes have a cumulative effect, where one builds on another or modifies a previous order. Several executive orders taken together form the basis for Presidential permits. We’ll look at a few related to oil pipelines.

President Dwight D. Eisenhower - Portrait by James Anthony Wills, 1967Executive Order 10485 – Providing for the performance of certain functions heretofore performed by the President with respect to electric power and natural gas facilities located on the borders of the United States, was issued by Dwight D. Eisenhower on September 3, 1953.

Although EO 10485 is specific to cross-border electric transmission and natural gas facilities, it set a precedent for the President to delegate his or her authority to issue Presidential permits.

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, was issued by Lyndon B. Johnson on August 16, 1968.

President Lyndon B. Johnson - Photo by Arnold Newman, 1964EO 11423 delegates Presidential authority to issue Presidential permits to the Secretary of State for a wide range of cross-border facilities including oil pipelines.

EO 11423 requires the Secretary of State to request the views of stipulated federal agencies (revised by EO 13337) during the permit review process.

The Secretary of State is required to notify the other federal agencies of the decision to approve or deny a permit, and if approved issue the permit within 15 days, unless there is an objection by another agency, in which case the permit application is referred to the President for a decision. EO 11423 allows notices to be published in the Federal Register regarding receipt of permit applications, public comments, and issuance or denial of permits.

Executive Order 13212 – Actions To Expedite Energy-Related Projects, was issued by George W. Bush on May 18, 2001.

The stated purpose of EO 13212 is to expedite projects that would increase production, transmission, or conservation of energy while maintaining safety, public health, and environmental protections.

EO 13212 established an Interagency Task Force to monitor and assist other agencies in efforts to review and expedite permits. The Task Force is composed of representatives from over a dozen federal agencies and chaired by the Chairman of the Council on Environmental Quality.

President George W. Bush - Photo by Eric Draper, 2003Executive Order 13337 – Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States, was issued by President George W. Bush on April 30, 2004.

EO 13337 furthers the policy stated in EO 13212 by expediting the Presidential permit process and accelerating completion of energy production and transmission projects. It established a 90-day review process for Presidential permit applications.

When EO 11423 was issued in 1968, the Departments of Energy and Homeland Security, and the Environmental Protection Agency did not exist. EO 13337 amended EO 11423 by revising the federal agencies to be consulted by the Secretary of State during the Presidential permit review process. Per EO 13337, the following eight federal officials are consulted: Secretaries of Defense, Interior, Commerce, Transportation, Energy, Homeland Security, the Attorney General, and the Administrator of the Environmental Protection Agency.

The above Presidential executive orders form the foundation of the Presidential permit process for cross-border oil pipelines as it exists today.

Hopefully, you now have an understanding of Presidential executive orders in general and how they apply to the proposed Keystone XL Pipeline project.

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Author: Linda Poppenheimer

Linda researches and writes about environmental topics to share information, spark conversation, and convince people to take action to keep earth habitable for all. She believes our individual actions do matter—it all adds up.

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