On April 10, 2019, President Donald Trump issued two Executive Orders promoting new energy infrastructure by removing regulatory barriers and revising the Presidential permitting process. Both Executive Orders aim to streamline the regulatory processes for building new energy infrastructure projects.
In the first Executive Order on energy infrastructure and economic growth, President Trump stated that “infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures.” To encourage new infrastructure, President Trump focused primarily on water quality certifications issued pursuant to section 401 of the Clean Water Act (“CWA”) and related Federal guidance and regulations. Specifically, President Trump directed the Administrator of the Environmental Protection Agency (“EPA”) to consult with States, tribes, and relevant executive government agencies to determine whether any provisions of EPA’s CWA regulations should be revised to encourage more efficient permitting, timely action on infrastructure projects, increased regulatory certainty, effective stewardship of natural resources, and to support economic growth. After consultation, the Administrator must develop proposed rules revising those regulations and then issue the new guidance to States and authorized tribes to supersede existing CWA section 401 interim guidance. In addition, President Trump directed the heads of other section 401 implementing agencies to assess their own guidance and revise them for consistency with any new rule developed by the EPA. President Trump also directed the Department of Transportation to develop a rule permitting liquified natural gas to be shipped in approved rail tank cars.
In the second Executive Order on cross-border infrastructure, President Trump directed the Secretary of State to adopt new procedures for the development and issuance of Presidential permits related to the construction, connection, operation, and maintenance of certain facilities and land transportation crossings at international borders in the United States. President Trump required that the Secretary of State adopt procedures ensuring that he or she can review an application for a Presidential permit, request additional information where necessary, consult with any interested agencies, State, tribal, or local officials or foreign governments, and make a recommendation to the President regarding the issuance of a Presidential permit within 60 days of the Secretary of State’s receipt of an application for a Presidential permit. The Executive Order provides, however, that ultimately the President decides whether to issue, deny or amend such a permit. Lastly, President Trump directed the Secretary of State to review the Department of State’s regulations to make changes consistent with the Executive Order no later than May 29, 2020.