On April 10, 2019, amid much fanfare, while at the International Union of Operating Engineers International Training and Education Center in Texas, President Donald Trump signed two executive orders designed to fast track the construction of pipeline projects.
The first executive order to be signed allowed the Environmental Protection Agency (EPA) to review and update “outdated” the guidelines that allows states to block oil and gas pipelines by withholding certification under a section of the Clean Water Act.
The second part of the executive order allowed for the shipment of natural gas by special rail cars when a pipeline couldn’t be used.
Trump’s second executive order gave him – the president – the authority to issue or deny a permit for cross-border infrastructure projects. “Nobody in the world can do what you folks do,” said Mr. Trump while signing the orders. “And we’re going to make it easier for you.”
“My action today will cut through destructive permitting delays and denials so we can get to work producing the energy we need to compete around the world,” Trump added.
This was not the only time Trump has used an executive order to side-step regulations, In 2017, soon after taking office, Mr. Trump signed another two Executive Orders: for Energy Partners’ Dakota Access and TransCanada’s Keystone XL pipelines, and another regarding the construction of steel pipes.
Pipelines in trouble
Two natural gas pipelines – Dominion Energy Inc’s Atlantic Coast and EQM Midstream Partners LP’s Mountain Valley, and the long-stalled Keystone XL crude oil pipeline that would start in Canada are the three projects under scrutiny by the courts because the EPA granted permits without adequate environmental studies, according to Reuters.
The resulting delays, some as long as two years, have caused both natural gas pipeline projects to increase their cost estimates – by millions of dollars. The Atlantic Coast pipeline project is so burdened with lawsuits it may even go to the Supreme Court.
One thing the courts have to decide on is whether the Forest Service has the authority to permit the Atlantic Coast Pipeline to cross the Appalachian Trail – and to decide whether developers of the Mountain Valley project can lawfully seize private property before paying.
The words, “eminent domain” have crept into the legal battle and the court’s decision over the use of eminent domain in pipelines that feed export markets could not only affect pipelines that cross into Canada and Mexico but also could have implications for pipelines feeding liquefied natural gas facilities.
The question in this context is whether it is possible to justify that a project designed to supply energy to citizens of foreign countries will serve the public good.
“Environmental groups definitely have been going after these pipelines more aggressively,” said Amy Vazquez, Houston-based partner at the law firm of Jones Walker, who specializes in energy litigation. “It’s probably because they’re having a fair bit of success.”
The White House declined to comment.
