Presidential Permits for Border Crossing Energy Facilities (CRS Report for Congress)
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| Release Date |
Revised Aug. 1, 2017 |
| Report Number |
R43261 |
| Report Type |
Report |
| Authors |
Adam Vann, Legislative Attorney; Paul W. Parfomak, Specialist in Energy and Infrastructure Policy |
| Source Agency |
Congressional Research Service |
| Older Revisions |
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Summary:
Controversy over the proposed Keystone XL pipeline project has focused attention on U.S.
requirements for authorization to construct and operate pipelines and other energy infrastructure
at international borders. For the most part, developers are required to obtain a Presidential Permit
for border crossing facilities. The agency responsible for reviewing applications and issuing
Presidential Permits varies depending on the type of facility. Oil and other hazardous liquids
pipelines that cross borders are authorized by the U.S. Department of State. Natural gas pipeline
border crossings are authorized by the Federal Energy Regulatory Commission (FERC).
Electricity transmission facilities are authorized by the Department of Energy (DOE). CRS has
identified over 100 operating or proposed oil, natural gas, and electric transmission facilities
crossing the U.S.-Mexico or U.S.-Canada border.
The authority for federal agencies to review applications and issue Presidential Permits for oil
pipelines comes from a series of executive orders. These executive orders have been upheld by
the courts as legitimate exercises of the President’s constitutional authority over foreign affairs as
well as his authority as Commander in Chief. It is worth noting, however, that Congress has
enacted statutes applying to cross-border natural gas and electric transmission facilities that
require developers of such projects to apply for authorization from executive branch agencies.
In recent years, in the context of the Presidential Permit application for the proposed Keystone
XL crude oil pipeline project, Congress has attempted to modify the permitting process for border
crossing energy facilities. An Executive Memorandum issued on January 24, 2017, by President
Trump inviting TransCanada Corp. to resubmit its Presidential Permit application for the
Keystone XL border crossing facility, and the Administration’s subsequent issuance of the
Presidential Permit, reduced any need for legislative action in order to authorize the border
crossing for that particular project. However, Congress remains interested in overhauling the
existing permitting framework, which was created exclusively by the executive branch, in favor
of a framework which would be established by statute. Accordingly, on July 19, 2017, the House
passed the Promoting Cross-Border Energy Infrastructure Act (H.R. 2883), which would
eliminate the Presidential Permit requirement for cross-border crude oil, petroleum products,
natural gas, and electric transmission infrastructure. Instead, developers would require
“certificates of crossing” from FERC for cross-border oil, petroleum products, and gas pipelines,
or from DOE for cross-border electric transmission. The statute does not appear to apply to other
hazardous liquids infrastructure—notably natural gas liquids (e.g., propane) pipelines—so the
State Department would retain its traditional Presidential Permit authority for these facilities.
