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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Keystone XL Pipeline – Presidential Permit

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

Oil Tar-Sands Mining near Fort McMurray in Alberta, Canada - Photo: Jeff McIntosh/The Canadian Press/APThe 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.

  1. 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.
  2. 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.

U.S. Secretary of State John Kerry - Photo: Department of StateIn 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:

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.

President Barack Obama Walking at TransCanada Pipe Yard in Cushing, OK in March, 2012 - Photo: Pablo Martinez Monsivais/APIn the case of an objection, the Presidential permit application is referred to the President for a final decision.

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.

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