Many people had probably never heard of a Presidential permit until the proposed Keystone XL Pipeline project gained public attention in 2011.
In short, anyone wanting to build anything across the U.S.-Mexico or U.S.-Canada border must receive authorization in the form of a Presidential permit.
This post gives readers an overview of the Presidential permit process, especially as it relates to oil pipelines. First, we’ll look briefly, at how the Keystone XL Pipeline Presidential permit application made the news in 2011.
Keystone XL Pipeline Presidential Permit Denied in 2011
The Keystone Pipeline is a series of pipelines for transporting heavy crude oil from the Western Canadian Sedimentary Basin and the Bakken formation in Montana and North Dakota to refineries in the Gulf of Mexico area. The proposed Keystone XL Pipeline is one section of the overall Keystone Pipeline.
The Keystone XL Pipeline application for a Presidential permit garnered media attention late in 2011 for two reasons.
- In November 2011, the project hit an environmental snag when it was determined part of the proposed route would take the pipeline through the Sand Hills Region of Nebraska and over the Ogallala Aquifer, one of the world’s largest aquifers.
- Then in December 2011, Congress adopted a provision in the Temporary Payroll Tax Cut Continuation Act of 2011 (section 501) that sought to require the President to make a decision on the Presidential permit within 60 days.
60 days was deemed insufficient time to address the environmental issues of the project, therefore the Presidential permit was denied.
Since then, the proposed route was changed and a new application for a Presidential permit submitted (but that is a subject for another post).
What is a Presidential Permit?
Construction, operation, and maintenance of facilities that cross the U.S.-Mexico or U.S.-Canada border require authorization via the Presidential permit process. This includes land crossings, bridges, pipelines, tunnels, conveyor belts, and tramways.
As the Chief Executive of the United States, the President holds the ultimate authority over the approval or denial of Presidential permits. However, through a series of executive orders Presidential authority was delegated to the Department of State and in some cases to other federal agencies.
Presidential permits for cross-border oil pipelines fall under the Department of State.
In order to approve a permit, the Department of State must find the border-crossing project is in the national interest of the United States. The Department coordinates with other agencies, invites public comment, and evaluates applications for compliance with U.S. border security, safety, health, and environmental requirements.
The Secretary of State is required to consult the following eight federal officials when reviewing permit applications: Secretaries of Defense, Interior, Commerce, Transportation, Energy, Homeland Security, the Attorney General, and the Administrator of the Environmental Protection Agency. All federal officials must provide their views within 90 days of the request.
The Department may also consult with other federal, state, and local agencies, and consider public comments before making a decision about whether to approve or deny a Presidential permit.
Several federal laws and at least one executive order mandate that all federal agencies consider the environment, historical and cultural preservation, endangered species, and environmental justice when evaluating projects for approval. They include:
- National Environmental Protection Act of 1969
- Endangered Species Act of 1973
- National Historic Preservation Act of 1996
- Executive Order 12898 – Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 1994
If a project is found to have significant environmental impact, the Department must prepare a full Environmental Impact Statement (EIS) and make it available for review by appropriate agencies and for public comment.
If the Secretary of State decides issuing the permit is in the national interest of the United States, the Department informs the required federal agencies of its intent and then issues the Presidential permit 15 days later, unless there is an objection by another federal agency.
Stay tuned for a post about the role Presidential executive orders play in the Presidential permit process. It’s more interesting than you may think.
- Earth Day 2014 – Mr. President, Go Green
- Keystone XL Pipeline – Economics and Environment Quiz
- Keystone XL Pipeline – Economics and Environment Quiz Answers
- Keystone XL Pipeline – Executive Orders
- President Obama’s Speech and Climate Action Plan
- Congressional Research Service – Presidential Permits for Border Crossing Energy Facilities, by Adam Vann and Paul W. Parfomak, October 29, 2013
- U.S. Department of State – Applying for Presidential Permits for Border Crossing Facilities (Canada) – Fact Sheet
- U.S. Department of State – Final Supplemental Environmental Impact Statement
for the Keystone XL Project: Executive Summary, January 2014
- U.S. Department of State – Presidential Permits for Border Crossings