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Thursday, November 14, 2013

Presidential Permits for Border Crossing Energy Facilities


Adam Vann
Legislative Attorney

Paul W. Parfomak
Specialist in Energy and Infrastructure Policy

Controversy over the proposed Keystone XL pipeline project has focused attention on the existing 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. Electricity transmission facilities are authorized by the Department of Energy. 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 acted to modify the State Department permitting process. Legislation proposed in the 112
th and 113th Congresses has been, for the most part, directed at Presidential Permit authority only with respect to the Keystone XL project—although such legislation could set a precedent for Congress to assert authority over cross border energy infrastructure permits more broadly. However, the North American Energy Infrastructure Act (H.R. 3301) would change presidential permitting for all border crossing energy infrastructure. What practical effects any of these legislative proposals would have on the review and approval of future border crossing energy infrastructure projects is the subject of ongoing debate.

Date of Report: October 29, 2013
Number of Pages: 16
Order Number: R43261
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