The question of whether Presidential Permit authority is constitutional and/or subject to judicial review has been and continues to be an unsettled issue.  A little more than a month after the State Department’s November 2015 denial of TransCanada’s application for a Presidential Permit to construct its Keystone XL pipeline project, the United States District Court for the District of Minnesota ruled in White Earth Nation et al. v. Kerry et al. that State Department Presidential Permitting decisions are Presidential in nature and are therefore not subject to judicial review.  Approximately one month later, in January 2016, TransCanada filed two separate actions to challenge the Obama administration’s rejection of its application for a Presidential Permit for the Keystone XL pipeline.  The first action was filed in federal district court in Texas to challenge the denial of the Keystone Presidential Permit, and the second is a Notice of Intent to submit a claim to arbitration under Chapter 11 of the North American Free Trade Agreement (NAFTA).
Continue Reading Challenging Presidential Permitting Authority

Despite veto threats from the Obama Administration, H.R. 3301, the “North American Energy Infrastructure Act”, passed in the U.S. House of Representatives by a vote of 238 to 173 on June 24, 2014.  The purpose of the bill (subject of a prior post) is to eliminate the Presidential permitting process for cross-border pipelines and electric transmission facilities.  For oil pipelines and electric transmission lines, the bill would only require a “certificate of crossing” for the construction, connection, operation or maintenance of the cross-border segment of a proposed project.  The certificate would be issued by the State Department (for oil pipelines) or by the Department of Energy (for electric transmission lines).  These Departments would be required to issue certificates of crossing within 120 days of completion of review of the proposed “cross-border segment” under the National Environmental Policy Act (NEPA), unless they find that the project is not in the national public interest.  For natural gas pipeline projects, a certificate of crossing would not be required, as the bill leaves in place the current authorization process of the Natural Gas Act, under which FERC approves siting, construction or operation of natural gas pipeline facilities, and the import or export of natural gas.  The bill would, however, eliminate the Presidential Permit requirement for natural gas pipeline projects.
Continue Reading House Approves Bill to Reform Permitting Process for Cross-Border Pipelines, Despite Presidential Opposition

In late 2013, the U.S. State Department granted a Presidential Permit approving the reversal of flow of an existing pipeline that crosses the U.S.-Canadian border in North Dakota. In contrast to other pending Presidential Permits for several proposed pipelines, such as Keystone XL, it appears that the State Department limited its review in this instance to a short section of the pipeline at the border crossing, as opposed to the entire pipeline.
Continue Reading Review of Presidential Permit Limited to Border Crossing (Not Entire Pipeline)

Two bills aimed at expediting pipeline construction permitting and, in turn, U.S. energy production are moving through the House of Representatives, but face opposition in the Senate and the White House. The Natural Gas Pipeline Permitting Reform Act passed the House of Representatives by a large majority on Thursday, November 21, 2013.
Continue Reading House Votes on Two New Pieces of Proposed Pipeline Legislation

On October 22, 2013, House Representatives Upton (R-MI) and Green (D-TX) introduced the North American Energy Infrastructure Act, H.R. 3301. The bill is intended to streamline the permitting process for cross-border pipelines and electric transmission facilities by eliminating the Presidential permitting process, requiring that all requests for approval of cross-border oil pipelines be administered directly by the Secretary of Commerce and all requests for natural gas pipeline crossings be administered directly by FERC.
Continue Reading Congress Considers North American Energy Infrastructure Act