The Executive Order (EO) “Promoting Energy Infrastructure and Economic Growth,” issued by the White House on April 10, 2019 has primarily been heralded as an effort to prevent states from blocking pipelines under their Clean Water Act Section 401 certification authority. President Trump addressed a number of other energy issues in the same Executive Order, however, all attempting to remove barriers to energy projects in the U.S. As summarized below, these include a call for updating regulations governing LNG facility safety regulations, addressing sunset provisions in agreements for energy infrastructure on federal lands, and requesting reports assessing impediments to fuel supply in New England and export efforts in West Coast, and ways to promote economic growth in Appalachia.

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President Trump recently issued two much anticipated Executive Orders aimed to streamline the permitting of U.S. energy infrastructure. One Executive Order (EO) focuses primarily on Clean Water Act (CWA) state issued water quality certifications and associated EPA guidance and regulations. In “Executive Order on Promoting Energy Infrastructure and Economic Growth,” the Administration takes aim at “outdated Federal guidance and regulations” under Section 401 of the CWA that are “causing confusion and uncertainty and are hindering the development of energy infrastructure.” While states and environmental organizations are concerned that the EO will limit a state’s authority under the CWA, the impact of the EO at least initially appears to be limited, as the statute and the case law on point already establish certain limits regardless of the EO. What remains to be seen is the import of any proposed rulemakings issued as a result of this EO, or whether these issues prompt any legislation that proposes to amend Section 401 of the CWA.

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The Department of Transportation formally requested public comment on existing rules and “other agency actions,” including but not limited to guidance documents and policy statements, that are good candidates for repeal, replacement, suspension, or modification without compromising safety.  This request covers all DOT modal agencies, including PHMSA, the FAA, the FRA, NHTSA, among others.   In addition to requesting comments, DOT indicated that it may hold a public meeting on these issues. Comments are due November 1, 2017.

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In an April 18, 2017 letter, EPA Administrator Scott Pruitt stated that the Agency will reconsider final rules governing new sources of methane emissions from the oil and gas industry. This decision was prompted by issues raised in petitions for reconsideration filed by a number of groups—including API and the Texas Oil and Gas Association—concerning EPA’s final rule amending the oil and natural gas sector New Source Performance Standards (NSPS) (the Final Rule), which was published on June 3, 2016 and became effective August 2, 2016. Under Clean Air Act Section 307(d)(7)(B), the Agency must convene a proceeding if a petition for reconsideration raises issues that are of central relevance to the rule and arose after the public comment period closed or were impracticable to raise during the public comment period.
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President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule. The Order requires that the review ensure that the WOTUS Rule is consistent with a new policy to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule was stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
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President Trump continues to focus on streamlining and expediting government reviews for large-scale infrastructure projects, including oil and gas pipelines. On January 24, the President signed an Executive Order (EO) focused on expediting the permitting process for such projects. In the EO, President Trump stated that “[t]oo often, infrastructure projects in the United States have been routinely and excessively delayed by agency processes and procedures.”
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