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Trump executive order will aim to prevent states from blocking pipelines, energy infrastructure

Key Points
  • Some states are using authority under the Clean Water Act to block fossil fuel pipelines and infrastructure.
  • President Donald Trump will sign an executive order that seeks to limit states' ability to delay construction.
  • The same executive order contains several other provisions to promote energy infrastructure development.
President Donald Trump holds up a signed executive order to advance construction of the Keystone XL pipeline at the White House in Washington January 24, 2017.
Kevin Lamarque | Reuters

President Donald Trump will issue an executive order that aims to prevent states from blocking pipelines and other energy infrastructure by using authority granted to them under the Clean Water Act.

Senior administration officials on Tuesday previewed the action and several others, which are contained in two executive orders that Trump will sign during a trip to Texas on Wednesday. They are the latest in a series of executive orders by Trump meant to roll back energy regulations and promote fossil fuel development.

The new executive order represents a shot from the White House in the ongoing battle between beltway Republicans and Democratic governors opposed to fossil fuel developments in their states. It has been anticipated for nearly three months and is expected to be challenged in court.

The state powers are laid out in federal law, and a presidential order cannot override them, some lawyers and energy analysts have said.

Under Section 401 of the Clean Water Act, companies must obtain certifications from the state before they can build federally-approved infrastructure, like pipelines, within that state's borders.

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States can refuse to issue the certifications if they determine the project will have a negative impact on water quality within their jurisdiction, even if the project has gotten the green light from the Federal Energy Regulatory Commission, the independent panel that regulates interstate pipelines and transmission lines.

Republican lawmakers have accused Democrat-controlled states of abusing their power under Section 401 to block FERC-approved infrastructure tied to fossil fuels.

New York has refused to issue a water permit to the developers of the Constitution Pipeline, a 125-mile project that would transport natural gas from Pennsylvania to the region around New York City. Washington state has also denied the operator of a port on the Columbia River certifications to develop a coal export terminal.

The new executive order will direct the Environmental Protection Agency to review its existing guidance on Section 401 to states. The EPA will focus on making sure states exercise their authority consistent with the intent of the statute and with existing case law, a senior administration official said.

The official said that while many states implement the law "faithfully," others have exercised their power in a way that has delayed energy infrastructure projects.

The same presidential order also calls for a review of safety standards for liquefied natural gas export terminals and rules that prevent LNG from being transported by rail car.

It also orders the Department of Labor to review existing guidance on fiduciary responsibility related to energy infrastructure investments. Further, it tasks the Energy and Transportation Departments with preparing reports on limitations to transporting natural gas to the Northeast and West Coast.

A separate executive order will clarify that the final decision to approve certain cross-border infrastructure rests with the president. The responsibility is currently delegated to the Secretary of State.