On January 25, President Trump issued 4 executive actions intended to streamline the approval of the Dakota Access Pipeline, the Keystone XL Pipeline, and other “high priority infrastructure projects” that may come before his administration in the future. This article summarizes each of the 4 actions and explains their anticipated impact. Chi-miigwech to our friend Doug Hayes, staff attorney for the Sierra Club, for his excellent contributions to this analysis and generosity in sharing them.
cartoon by David Horsey
#1 - Presidential Memorandum: Construction of the Dakota Access Pipeline
Last year, the Army Corps of Engineers approved DAPL using Nationwide Permit 12 without preparing an Environmental Assessment (EA) or Environmental Impact Statement (EIS). The Corps did prepare a limited EA and Finding of No Significant Impact (FONSI) for the section of the pipeline that would cross under Lake Oahe. However, the Corps still has not issued the final easement for the crossing, as required by the Mineral Leasing Act (MLA). On December 4, 2016, following months of indigenous-led resistance at Standing Rock, Assistant Secretary of the Army Jo-Ellen Darcy announced that the Corps would prepare an EIS to evaluate alternative routes around Lake Oahe, impacts to the Standing Rock Sioux Tribe, and the risks of oil spills. On January 18th the Corps published a Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register and announced a scoping comment period through February 20, 2017. Visit our website for a simple explanation of how to submit a good scoping comment.
What the memo says:
The Presidential Memorandum was issued to the Secretary of the Army. It directs the Secretary of the Army to direct the Assistant Secretary of the Army for Civil Works and other Corps offices to do the following:
(i) “review and approve [DAPL] in an expedited manner, to the extent permitted by law and as warranted…”
(ii) to “consider, to the extent permitted by law and as warranted, whether to rescind or modify” the December 4th announcement and withdraw the Federal Register Notice;
(iii) to “consider, to the extent permitted by law and as warranted,” whether the previously-issued EA/FONSI satisfies NEPA.
(v) issue, to the extent permitted by law and as warranted, any approved easements or rights- of-way immediately after notice is provided to Congress pursuant to the MLA.
What it means:
The memo directs the Corps to approve DAPL as quickly as possible, but it does not change the law or relieve the Corps of its legal obligations. The Corps could comply by preparing the EIS as quickly as possible and then making a decision, which would take at least several months. However, provisions (ii) and (iii) suggest that the Assistant Secretary will reverse the decision to prepare an EIS and immediately grant the easement. The Corps’ announcement of 12/4/16 did not explicitly find that an EIS was legally required; in fact, it stated that it stood by all previous decisions (i.e., the EA/FONSI that determined an EIS was not required) but was preparing an EIS as a discretionary decision. If that occurs, the Mineral Leasing Act requires the Corps to notify Congress prior to issuing an easement. The Corps ordinarily waits 14 days following congressional notification to issue the easement, but that appears to be a matter of practice rather than a legal requirement. Provision (v) above suggests the Corps may not wait 14 days in this case.
#2 - Presidential Memorandum: Construction of the Keystone XL Pipeline
Following a multi-year environmental review process, the Obama Administration denied the Keystone XL presidential permit application in November 2015. Executive Order 13337 (2004) governs the State Department process for issuing presidential permits for cross-border pipelines based on whether they “would serve the national interest.” The process for making the “national interest determination” is outlined in the Exec. Order 13337, and includes a 90-day inter-agency comment period.
What the memo says:
The memorandum directs the State Department, the Army Corps of Engineers, and the Department of Interior, to expedite permitting of Keystone XL. It does not rescind or replace 13337. It invites TransCanada to promptly re-submit its application, and directs the State Department to:
(i) make a final decision on a presidential permit application, should TransCanada re-apply, “including a final decision as to any conditions on issuance of the permit that are necessary to or appropriate to serve the national interest,” within 60 days of submission of the application.
(ii) to consider the January 2014 Final Environmental Impact Statement (FEIS) prepared for the prior Keystone XL application (submitted May 4, 2012) to satisfy NEPA and any other provision of law such as the Endangered Species Act.
(iv) waive the agency notification and fifteen-day delay requirements set forth at sections 1(g), 1(h), and 1(i) of Exec. Order 13337
What it means:
Like the DAPL memorandum, everything here is qualified with the phrase “to the maximum extent permitted by law,” so no agencies are relieved of any legal obligations. However, the State Department’s NID process is derived only from Executive Order 13337 rather than any statute, and this memorandum streamlines that review process by requiring the State Department to make a final decision within 60-days of submission of the application.
Section 3(a) of Exec. Order 13337 states that the “Secretary of State may provide for the publication in the Federal Register of notice of receipt of applications, [and] for the receipt of public comments on applications,” but public notice and comment is not mandatory. In light of the State Department’s reliance on the 2014 FEIS (see below), that means the State Department approval process may not involve the public at all.
This Presidential Memorandum does nothing to relieve the State Department of its NEPA obligations. Trump’s statement that a three-year old EIS satisfies NEPA should carry no legal weight, especially since the 2017 version of the Keystone XL application has yet to be filed. If the State Department approves the project based on this, environmental groups will sue them. The courts will have to decide whether the Final EIS prepared for the last KXL application in January of 2014 “shall be considered by the Secretary of State to satisfy” NEPA. District courts are split on the question of whether the State Department’s NEPA compliance in conjunction with issuing presidential permits is subject to judicial review.
#3 - Executive Order: Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects
This Executive Order starts with a policy statement explaining the importance of infrastructure projects, how agency reviews have caused excessive delays, and how this administration will streamline and expedite those reviews.
Section 2 provides that any governor, head of an executive agency or department, or the Chairman of the White House Council on Environmental Quality (CEQ) may request that any infrastructure project requiring federal approval be designated a “High Priority Infrastructure Project.” The Chairman of the CEQ must decide whether to grant that designation within 30 days.
If a project is designated a “High Priority Infrastructure Project,” the Chairman of the CEQ must then coordinate with relevant agency heads to establish expedited procedures and deadlines for completion of environmental reviews and approvals for the project. Agencies are to give these projects the highest priority for completion, and must provide written explanation to CEQ if deadlines are not met. There is nothing in the text of this Executive Order to indicate there will be any kind of public notice if a project is designated as high priority or when deadlines are set.
Like all 4 of these executive actions, this order does nothing to relieve agencies of their obligations to comply with environmental laws like NEPA, the CWA, or the ESA. Therefore, it is likely that arbitrary deadlines will cause agencies to rush their review processes and cut corners, resulting in violations of legal requirements, and lots of prolonged court battles.
#4 - Presidential Memorandum: Construction of American Pipelines
This memorandum, directed to the Secretary of Commerce, is intended to ensure that all pipelines built, retrofitted, expanded, or repaired in the United States use materials and equipment (i.e., the steel or iron pipe) that is produced in the United States. The memorandum requires the Secretary of Commerce to consult with other executive agencies to develop a plan to accomplish this goal and submit it to the President within 180 days.
This Presidential Memorandum simply requires the Secretary of Commerce to submit a plan within six months, but there is no guarantee that a plan will be implemented, let alone any actual requirement that pipelines such as Keystone XL would be required to use American-made steel. In fact, TransCanada already purchased much of the pipe for Keystone XL from foreign sources. (In January of 2015, Senate Republicans blocked a measure that would require Keystone XL to use American steel.)
This memo is simply an opportunity for Trump to claim he is creating American jobs without actually doing anything.