New Executive Order Aims to Reduce Permitting Delays for Energy Infrastructure
The press has chronicled how some states, particularly in the Northeast, have used a provision in the Clean Water Act to deny federally-approved interstate natural gas pipelines. These interstate pipeline constraints have a real impact. In early 2019, New York utility Consolidated Edison announced that it is imposing a moratorium on new natural gas service in parts of Westchester County, which is north of New York City. As a result, the utility is no longer accepting applications for new natural gas connections in most of Westchester County. The moratorium applies to new residential, commercial, and industrial connections, which includes new gas usage for heating, hot water, laundry, and cooking.
On April 10, 2019, President Trump signed an Executive Order promoting energy infrastructure and economic growth. The Executive Order aims to "help families and businesses in States with energy constraints to access affordable and reliable domestic energy resources."
The Executive Order requires EPA to update its guidance and regulations regarding water quality certifications under Section 401 of the Clean Water Act. The Section 401 Certification process provides states the opportunity to determine whether a project will comply with the state’s federally-approved water-quality standards, if the project will result in a discharge into waters of the United States.
Under the Executive Order, EPA is required to:
- Within 60 days: EPA must issue new guidance to States and tribes regarding the Section 401 Certification process. The guidance should consider “the need to promote timely Federal-State cooperation and collaboration,” “the appropriate scope of water quality reviews,” the “types of conditions that may be appropriate to include in a certification,” and “expectations for reasonable review times for various types of certification requests,” and “the nature and scope of information States and authorized tribes may need in order to substantively act on a certification request within a prescribed period of time.”
- Within 120 days: EPA must review its Section 401 Certification regulations for consistency with the policies articulated in the Executive Order, and publish for notice and comment proposed rules for revising such regulations, as appropriate and consistent with law.
- Within 13 months: EPA must finalize any proposed Section 401 Certification regulations.
Under the Executive Order, Section 401 Implementing Agencies (i.e., those agencies that issue permits or licenses subject to the Section 401 Certification requirement) are required to:
- After 60 days (i.e., after EPA revises its guidance): Section 401 Implementing Agencies must participate in an EPA-led interagency review of existing Federal guidance and regulations that impact the Section 401 Certification process.
- Within 150 days: Section 401 Implementing Agencies must update their respective guidance.
- If EPA Revises its Section 401 Certification Regulations: Section 401 Implementing Agencies must initiate a rulemaking to ensure their respective agencies’ regulations are consistent with EPA’s revised regulations.
The Executive Order also:
- Requires the Secretary of Transportation, in consultation with the Secretary of Energy, to within 180 days submit a report to the President “regarding the economic and other effects caused by the inability to transport sufficient quantities of natural gas and other domestic energy resources to the States in New England and other regions. The report must assess whether, and to what extent, State, local, tribal, or territorial actions have contributed to such effects.
- Directs the Secretaries of the Interior, Agriculture, and Commerce to develop a master agreement for renewal of energy infrastructure rights-of-way on federal lands.
- Directs the Department of Transportation to initiate a rulemaking to update regulations for Liquefied Natural Gas (LNG) facilities, including potential regulations that would allow LNG to be transported in rail tank cars.
The Executive Order is not likely to solve the tension between states and the Federal Energy Regulatory Commission over the siting of interstate natural gas pipelines. However, it may ultimately speed up the process for states to make Section 401 Certification decisions, and it may, depending on the extent of proposed regulatory changes, potentially impact the scope of what states may consider in deciding on Section 401 Certification requests.