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Trump Asserts Executive Power over Pipelines and Infrastructure

Trump has shown a willingness to override his own agencies to accomplish his aims

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FILE - In this March 24, 2017, photo, President Donald Trump announces the approval of a permit to build the Keystone XL pipeline, clearing the way for the $8 billion project, in the Oval Office of the White House in Washington. VOA

Eager to jump-start the stalled Keystone XL oil pipeline and other energy projects, President Donald Trump has acted to assert executive power over pipelines and such infrastructure.

He issued a new permit for Keystone XL and insisted this exercise of presidential authority was not subject to judicial review. Then he signed an executive order clarifying that the president alone has the power to grant permits for cross-border projects such as pipelines. A separate order makes it harder for states to block pipelines and other energy projects on the basis of environmental concerns.

Taken together, the actions amount to a broad assertion of power that reverses more than 50 years of precedent that delegated decision-making on energy projects to individual agencies.

Trump has shown a willingness to override his own agencies to accomplish his aims. His actions, if upheld by the courts, could consolidate power over energy projects at the White House, increasing the influence of the president’s political advisers and potentially cutting out experts and career officials throughout the government.

“Too often badly needed energy infrastructure is being held back by special interest groups, entrenched bureaucracies and radical activists,” Trump said Wednesday before signing the executive orders at an event in Texas.

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FILE – Indigenous leaders participate in a protest march and rally in opposition to the Dakota Access and Keystone XL pipelines, in Washington, Oct. 3, 2017. VOA

‘New decision-making structure’

Pipeline opponents say Trump acted illegally. They have asked a federal court to block the new Keystone permit, arguing that it is an effort to get around an earlier court ruling.

But one legal expert said Trump’s approach might succeed.

“He has now created a whole new decision-making structure” for cross-border pipelines, said Richard Pierce, a law professor at George Washington University.

If the courts follow a 1992 Supreme Court ruling, they may find that action taken by the State Department in approving or rejecting the pipeline “is nonreviewable, because it doesn’t qualify as final agency action,” Pierce said. Further, Trump’s decision would not be subject to review because of a separate law that declares the president is not an agency and therefore is not bound by rules that apply to agency actions.

“That’s a very clever approach that might well work,” Pierce said.

Trump’s actions are “typical of this presidency,” said Holly Doremus, an environmental law professor at the University of California-Berkeley. She said Trump frequently seeks to stretch the limits of his power, and she cited Trump’s declaration of an emergency that he says allows him to shift more money to construction of a promised wall along the U.S.-Mexico border.

In the case of Keystone, Trump appears to be arguing that the new presidential permit, issued March 29, gets around restrictions under the National Environmental Policy Act or other laws, because the statutes apply to executive-branch agencies but not to the president, Doremus said.

“If the president is the only discretionary decision maker, NEPA simply does not apply,” she said.

Who decides?

While Trump’s theory is plausible, it is unclear who is the ultimate decision-maker on Keystone XL, Doremus said. The pipeline would ship crude oil from the tar sands of western Canada to U.S. refineries along the Gulf of Mexico.

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FILE – President Barack Obama, accompanied by Vice President Joe Biden and Secretary of State John Kerry, announces he’s rejecting the Keystone XL pipeline because he does not believe it serves the national interest, Nov. 6, 2015. VOA

Both a 2015 rejection of the project by the Obama administration and a 2017 approval by Trump were issued by the State Department under terms of a 2004 executive order that delegated presidential authority for cross-border projects to that agency.

Trump’s executive order revokes the 2004 order, issued by President George W. Bush. Bush’s action extended an executive order first issued by President Lyndon B. Johnson in 1968.

“It’s surprising that the president would come in and single-handedly try to circumvent 50 years of precedent for these types of projects by just issuing a permit himself,” said Doug Hayes, a Sierra Club attorney who has sued to block the Keystone project in court.

In November, U.S. District Judge Brian Morris in Montana ruled that the Trump administration did not fully consider potential oil spills and other impacts when it approved the pipeline in 2017. Morris ordered a new environmental review of the pipeline.

The White House said the new permit issued by Trump “dispels any uncertainty” about the long-delayed project, which was first proposed a decade ago by Calgary-based TransCanada.

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FILE – A depot used to store pipes for TransCanada Corp.’s planned Keystone XL oil pipeline is seen in Gascoyne, N.D., Nov. 14, 2014. VOA

Trump’s move on Keystone XL reinforces the idea that “the presidential permit is indeed an exercise of presidential authority that is not subject to judicial review,” according to the White House.

Reviews by different agencies

Under the new order, federal officials still would conduct environmental reviews of the project, but they would be carried out by agencies other than the State Department, the White House said.

TransCanada spokesman Matthew John said the administration’s action “clearly demonstrates to the courts that the permit is [the] product of presidential decision-making and should not be subject to additional environmental review.”

Carl Tobias, a law professor at the University of Richmond, said it was “strange” that Trump issued the executive order after granting the new permit.

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“The White House is making the argument supposedly that he has untrammeled authority and doesn’t have to obey the laws of Congress” in approving a cross-border pipeline, Tobias said. “I’m dubious and I think a number of other people are, too.”

Kathryn Watts, a law professor at the University of Washington, said it’s unclear what happens next. Trump’s permit wades into “uncharted, unsettled” legal territory, she said. (VOA)

Next Story

Trump Administration to Revoke California’s Authority to Set Auto Mileage Standards

The Trump administration is poised to revoke California's authority to set auto mileage standards, asserting

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FILE - Automobile traffic flows over the Golden Gate Bridge in San Francisco. California's long struggles with smog mean the state has been setting its own mileage standards since before the 1970 Clean Air Act was written. VOA

The Trump administration is poised to revoke California’s authority to set auto mileage standards, asserting that only the federal government has the power to regulate greenhouse gas emissions and fuel economy.

Conservative and free-market groups have been asked to attend a formal announcement of the rollback set for Wednesday afternoon at Environmental Protection Agency headquarters in Washington.

Gloria Bergquist, spokeswoman for the Alliance of Automobile Manufacturers, said Tuesday that her group was among those invited to the event featuring EPA Administrator Andrew Wheeler and Transportation Secretary Elaine Chao.

The move comes after the Justice Department recently opened an antitrust investigation into a deal between California and four automakers for tougher pollution and related mileage requirements than those sought by President Donald Trump. Trump also has sought to relax Obama-era federal mileage standards nationwide, weakening a key effort by his Democratic predecessor to slow climate change.

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Environmental Protection Agency Administrator Andrew Wheeler speaks at a news conference in Washington, Sept. 12, 2019. VOA

Top California officials and environmental groups pledged legal action to stop the rollback.

The White House declined to comment Tuesday, referring questions to EPA. EPA’s press office did not respond to a phone message and email seeking comment.

But EPA Administrator Andrew Wheeler told the National Automobile Dealers Association on Tuesday that the Trump administration would move “in the very near future” to take steps toward establishing one nationwide set of fuel-economy standards.

“We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation,” he said, adding that higher fuel economy standards would hurt consumers by increasing the average sticker price of new cars and requiring automakers to produce more electric vehicles.

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Word of the pending announcement came as Trump traveled to California on Tuesday for an overnight trip that includes GOP fundraising events near San Francisco, Los Angeles and San Diego.

California’s authority to set its own, tougher emissions standards goes back to a waiver issued by Congress during passage of the Clean Air Act in 1970. The state has long pushed automakers to adopt more fuel-efficient passenger vehicles that emit less pollution. A dozen states and the District of Columbia also follow California’s fuel economy standards.

California Attorney General Xavier Becerra said Tuesday that the Trump administration’s action will hurt both U.S. automakers and American families. He said California would fight the administration in federal court.

“You have no basis and no authority to pull this waiver,” Becerra, a Democrat, said in a statement, referring to Trump. “We’re ready to fight for a future that you seem unable to comprehend.”

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FILE – California Gov. Gavin Newsom addresses a news conference in Sacramento, July 23, 2019. VOA

California Gov. Gavin Newsom said the White House “has abdicated its responsibility to the rest of the world on cutting emissions and fighting global warming.”

“California won’t ever wait for permission from Washington to protect the health and safety of children and families,” said Newsom, a Democrat.

The deal struck in July between California and four of the world’s largest automakers — Ford, Honda, BMW and Volkswagen — bypassed the Trump administration’s plan to freeze emissions and fuel economy standards adopted under Obama at 2021 levels.

The four automakers agreed with California to reduce emissions by 3.7% per year starting with the 2022 model year, through 2026. That compares with 4.7% yearly reductions through 2025 under the Obama standards. Emissions standards are closely linked with fuel economy requirements because vehicles pollute less if they burn fewer gallons of fuel.

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The U.S. transportation sector is the nation’s biggest single source of planet-warming greenhouse gasses.

Wheeler said Tuesday: “California will be able to keep in place and enforce programs to address smog and other forms of air pollution caused by motor vehicles.” But fuel economy has been one of the key regulatory tools the state has used to reduce harmful emissions.

Environmentalists condemned the Trump administration’s expected announcement, which comes as gasoline prices have crept higher following a weekend drone attack that hobbled Saudi Arabian oil output.

“Everyone wins when we adopt strong clean car standards as our public policy,” said Fred Krupp, president of Environmental Defense Fund. “Strong clean car standards give us healthier air to breathe, help protect us from the urgent threat of climate change and save Americans hundreds of dollars a year in gas expenses.” (VOA)