{ "id": "R44140", "type": "CRS Report", "typeId": "REPORTS", "number": "R44140", "active": true, "source": "EveryCRSReport.com", "versions": [ { "source": "EveryCRSReport.com", "id": 460528, "date": "2017-04-19", "retrieved": "2017-08-22T15:07:03.272863", "title": "Presidential Permit Review for Cross-Border Pipelines and Electric Transmission", "summary": "Executive permission in the form of a Presidential Permit has long been required for the construction, connection, operation, and maintenance of certain facilities that cross the United States borders with Canada and Mexico. The constitutional basis for the President\u2019s cross-border permitting authority has been addressed by the courts, but questions remain about the manner in which this authority is exercised among the agencies to which it has been delegated. In particular, some Members of Congress and affected stakeholders seek greater clarity about how Presidential Permit applications are reviewed for various kinds of cross-border energy projects. \nAgency Authorities and Decisionmaking\nCongress has shown particular interest in the Presidential Permit review processes for cross-border energy infrastructure as implemented by\nThe Department of State for pipelines that transport petroleum, petroleum products, and other hazardous liquids;\nThe Federal Energy Regulatory Commission (FERC) for natural gas pipelines; and\nThe Department of Energy (DOE) for electricity transmission lines.\nThe State Department makes its permitting decisions primarily in accordance with directives in Executive Order 11423 (E.O.), as amended by E.O. 13337. FERC and DOE make permitting decisions in accordance with E.O. 10485, as amended by E.O. 12038. Broadly speaking, each executive order requires the respective agency to\ngather necessary project-specific information from the applicant;\nseek input from specific outside federal agencies; and\ndecide whether to seek input from additional local, state, tribal, or federal agencies or from members of the public.\nUnder the applicable executive order, each agency is required to issue a Presidential Permit if, after evaluating all relevant project information, the agency determines that the project would \u201cserve the national interest\u201d (pursuant to E.O. 13337) or be \u201cconsistent with the public interest\u201d (pursuant to E.O. 10485). For the most part, agencies gather, evaluate, and consider project-related information within the framework of conducting an environmental review. Such reviews are generally conducted in accordance with each agency\u2019s process for complying with the National Environmental Policy Act (NEPA). \nIn documenting compliance with NEPA, each agency evaluates the direct and indirect effects, including any cumulative impacts, of issuing the permit. To do so, each agency generally looks at the effect of constructing the entire project, not just the portions that would cross the border (i.e., the action for which the Presidential Permit is required). Historically, evaluating impacts of the entire project would not necessarily involve a complex or particularly time-consuming review. With few exceptions, past applications for Presidential Permits have been for pipelines or transmission lines that extend a relatively short distance into a U.S. border state. Recently, however, several pipeline projects\u2014Enbridge Energy\u2019s Alberta Clipper and TransCanada\u2019s Keystone and Keystone XL pipeline\u2014have involved projects that are hundreds of miles long and cross multiple states. It was the larger scope of such projects that, in part, resulted in increased national attention to the most recent proposal, the Keystone XL pipeline. In 2015, the State Department under President Obama denied TransCanada\u2019s application for a Presidential Permit for the project, finding that it did not serve the national interest. However, a new permit application was approved on March 23, 2017, when the State Department, under the Trump Administration, found that the project did serve the national interest.\nIssues for Congress\nFrom 2011 through 2015, as the State Department considered permit applications for the Keystone XL pipeline project, Congress proposed a number of bills intended to affect the State Department\u2019s decisionmaking process. Although a permit has been issued for that project, Congress may again consider legislative options to expedite agency decisions on future permit applications. Congress may choose to address issues that arose during the Keystone XL permitting process. For example, during the review, some stakeholders questioned the scope of the NEPA review\u2014some were concerned that it was too broad, others that it was too narrow. Some also argued there was uncertainty over criteria the State Department used to determine whether the project would serve the national interest. Congress could potentially clarify these issues through legislation aimed at defining federal agency roles in authorizing cross-border projects.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R44140", "sha1": "ecbaf8d287cbd5bd023ca9ad5910e01875c0169d", "filename": "files/20170419_R44140_ecbaf8d287cbd5bd023ca9ad5910e01875c0169d.html", "images": {} }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R44140", "sha1": "28efb122e3926440c117688183e9394b70f940a4", "filename": "files/20170419_R44140_28efb122e3926440c117688183e9394b70f940a4.pdf", "images": {} } ], "topics": [ { "source": "IBCList", "id": 4813, "name": "International Energy & Natural Resource Issues" }, { "source": "IBCList", "id": 4814, "name": "Environmental Review & Policy" }, { "source": "IBCList", "id": 4840, "name": "Electricity" }, { "source": "IBCList", "id": 4847, "name": "Latin America, Caribbean, & Canada" } ] }, { "source": "EveryCRSReport.com", "id": 443666, "date": "2015-08-06", "retrieved": "2016-04-06T18:38:31.329935", "title": "Presidential Permit Review for Cross-Border Pipelines and Electric Transmission", "summary": "Executive permission in the form of a Presidential Permit has long been required for the construction, connection, operation, and maintenance of certain facilities that cross the United States borders with Canada and Mexico. The constitutional basis for the President\u2019s cross-border permitting authority is well established, but questions remain about the manner in which this authority is exercised among the agencies to which it has been delegated. In particular, some Members of Congress and affected stakeholders seek greater clarity about how Presidential Permit applications are reviewed for various kinds of cross-border energy projects. Particular attention is paid to the scope of review and perceived differences in the approaches taken by the State Department, the Department of Energy, and the Federal Energy Regulatory Commission. These agencies have jurisdiction over cross-border oil pipelines, electric transmission lines, and natural gas pipelines, respectively.\nIn the past, with few exceptions, the Presidential Permits issued for cross-border pipelines or electric transmission lines involved projects extending a relatively short distance into a U.S. border state before connecting to some existing facility. However, over the last decade, much longer cross-border projects have been approved, including the Keystone and Alberta Clipper pipelines. These projects are hundreds of miles long and cross multiple states. The larger scope of these approved projects, and subsequent permit applications for other large projects\u2014especially the Keystone XL pipeline\u2014have increased national attention to the Presidential Permit process.\nAnalysis of historical Presidential Permit reviews among the three permitting agencies shows that, notwithstanding differences in their permit authorities under the various executive orders, their reviews are driven largely by the National Environmental Policy Act (NEPA)\u2014and the same NEPA requirements apply to all three. Faced with Presidential Permit applications for energy projects of similar physical scope, the agencies appear to perform NEPA reviews of similar proportion. Very short, smaller projects are generally reviewed more narrowly and quickly, whereas multi-state projects of large capacity are subject to more expansive environmental review and tend to face much greater public scrutiny and comment\u2014regardless of which agency has jurisdiction.\nIn response to concerns about delays in the review of the Keystone XL permit application, several legislative proposals in the 114th Congress have sought to change some aspect of the Presidential Permit process. Most notable was the Keystone XL Pipeline Approval Act (S. 1), which was passed in Congress but vetoed by President Obama. Subsequent legislative proposals remain active, including the American Energy Renaissance Act of 2015 (S. 791 and H.R. 1487) and the North American Energy Infrastructure Act (S. 1228).\nAs long as agencies apply NEPA to Presidential Permitting decisions, changes to the delineation of, or jurisdiction over, the border-crossing portion of large projects for permitting purposes may not change the scope of project environmental review. The imposition of decision deadlines on the permitting agencies after NEPA review is complete, either for national interest or public interest determination, could provide greater process certainty to stakeholders. However, the overall project review would still be contingent on the completion of NEPA review. Thus, the effects of legislative proposals to change cross-border infrastructure permitting on the review or approval of future border crossing energy infrastructure projects are open to debate.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R44140", "sha1": "3ad78cbf1cc6696666913673c988de6ac15588f1", "filename": "files/20150806_R44140_3ad78cbf1cc6696666913673c988de6ac15588f1.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R44140", "sha1": "d9a1cf4af7b2a4d2a41b206cad1769d80fb4a988", "filename": "files/20150806_R44140_d9a1cf4af7b2a4d2a41b206cad1769d80fb4a988.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 2911, "name": "North America: Canada and Mexico" } ] } ], "topics": [ "Constitutional Questions", "Energy Policy", "Environmental Policy" ] }