Issuance of Permits With Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States

Overview

Purpose and Intent

Executive Order 13867, issued by President Donald Trump on April 10, 2019, aims to streamline the permitting process for cross-border infrastructure projects at the United States' international boundaries. This order is part of an effort to expedite the construction, connection, operation, and maintenance of various infrastructure facilities, including pipelines, bridges, and transportation crossings. By centralizing the process through the Secretary of State and setting timelines for review and decision-making, the order intends to reduce bureaucratic red tape and facilitate economic development.

Simplification of Processes

The primary goal of EO 13867 is to simplify the Presidential permitting process, which had become bogged down by years of accumulated regulations and procedures. This order deligates procedural control to the State Department, requiring it to establish a streamlined process that completes the necessary actions within 60 days of receiving an application. Furthermore, the order emphasizes the necessity for interagency collaboration, while also granting the President the final say in the issuance, denial, or amendment of permits.

Implications for Existing Infrastructure

This executive order does not alter existing permits, which remain valid unless modified or revoked by the appropriate authority. However, it revokes previous Executive Orders 13337 and 11423, which had established the framework for issuing permits for energy-related facilities and other infrastructure at international borders. This shift underscores a significant pivot in policy, placing greater emphasis on accelerating project timelines and reducing governmental barriers to cross-border infrastructure development.

Legal and Policy Implications

Constitutional Authority

EO 13867 leverages the President’s constitutional authority over foreign affairs to redefine the permitting process for cross-border infrastructure. The order assigns the Secretary of State the primary role in receiving and processing permit applications, reflecting the President’s prerogative to streamline operations deemed to fall within executive jurisdiction over international engagements.

Policy Shifts and Revocations

The revocation of Executive Orders 13337 and 11423 marks a substantial policy shift. It abandons the structured interagency review process established by previous administrations, which included environmental and foreign policy considerations as part of the permit evaluation process. This revocation represents a move toward rapid development and a potential de-emphasis on environmental and community impact in favor of economic growth.

Regulatory Framework Adjustments

The order mandates the State Department to review and possibly amend its regulations by May 2020 to align with this new directive. This introduces potential changes in how regulatory approvals are assessed, focusing on the speed and efficiency of processing rather than exhaustive reviews that could delay projects under the guise of ensuring national interest.

Who Benefits

Energy and Transportation Industries

The primary beneficiaries of EO 13867 are industries seeking to establish or expand cross-border infrastructure, particularly those in energy and transportation sectors. The streamlined process could encourage investment in pipelines, electric grids, and transportation networks that require crossing international boundaries. Companies operating in these sectors may find it easier to navigate the regulatory landscape and reduce the costs associated with prolonged permitting procedures.

Border Communities and Regional Economies

Communities near international borders could benefit from increased infrastructure development, which can stimulate local economies and create jobs. Enhanced connectivity via new transportation links and improved energy supply mechanisms could contribute to the economic vitality of these regions, promoting cross-border trade and cooperation.

Government Efficiency

The federal government may see increased operational efficiency by consolidating permit responsibilities within the State Department. Streamlined procedures may lead to resource savings and allow agencies to redirect attention towards other pressing policy matters. The reduced need for extensive interagency communications could also improve governmental response times to infrastructure needs.

Who Suffers

Environmental Advocacy Groups

Environmental organizations may view the executive order's reduction in procedural rigor as a threat to ecological and conservation efforts. The potential downgrading of environmental reviews in the permitting process could lead to infrastructure development that inadequately considers environmental impacts, posing risks to local ecosystems and biodiversity.

State and Local Governments

State and local governments might perceive EO 13867 as a diminishment of their influence in reviewing cross-border infrastructure projects. The expedited federal process potentially reduces opportunities for state and local stakeholders to voice concerns or request modifications to projects affecting their communities and regions.

Indigenous Tribes

Indigenous tribes could face challenges due to the rapid development of infrastructure projects on or near tribal lands. The accelerated timeline may limit tribal consultations, which are crucial for safeguarding tribal interests and respecting tribal sovereignty in decision-making processes concerning land use and environmental stewardship.

Historical Context

Executive Branch Trends

EO 13867 reflects a broader trend within the Trump administration of reducing federal oversight to promote business interests and accelerate infrastructure projects. It is indicative of the administration's general deregulatory stance, prioritizing economic growth and job creation over procedural checks that might impede development timelines.

International Relations and Policy

The emphasis on cross-border infrastructure aligns with Trump's "America First" policy, advocating for stronger economic ties through strategic infrastructure investments. It seeks to bolster international trade while reinforcing the U.S.’s role as a pivotal economic partner to neighboring countries.

Reevaluation of Environmental Regulations

This executive order fits within a wider context of policy initiatives to de-prioritize environmental regulations perceived as obstacles to economic development. Similar deregulatory actions aimed at revising or eliminating rules deemed burdensome to businesses have characterized Trump’s presidency.

Potential Controversies or Challenges

Legal Disputes

EO 13867 may face significant legal challenges regarding its compliance with existing environmental laws and treaties. Environmental organizations and state governments could initiate lawsuits arguing that the expedited process violates statutory requirements for thorough environmental assessments and public input.

Congressional Pushback

Members of Congress, particularly those from border states or representative of environmental constituencies, might oppose the executive order for overstepping legislative prerogatives. Congressional scrutiny may focus on the perceived erosion of checks and balances designed to ensure comprehensive policy assessments.

Indigenous Rights and Sovereignty Concerns

Indigenous tribes may assert that the executive order undermines their treaty rights and consultation processes. Legal challenges could arise claiming that the accelerated permitting infringes on sovereignty and the government’s fiduciary responsibility to protect tribal lands and resources.