US Presidential Permits for cross-border infrastructure

As the U.S.'s international trade in energy grows, so too has interest in the process for securing a federally required approval known as a Presidential Permit.

A marker shows the route of a natural gas pipeline in Utah.

The construction, operation, and maintenance of infrastructure that crosses the U.S.'s border with Mexico or Canada -- think pipelines, transmission lines, and bridges -- generally requires prior authorization by the federal government in the form of a Presidential Permit.  How you obtain a Presidential Permit depends on the type of facilities in question, as permits may be issued by several federal agencies under different legal authorities.

Presidential permits for oil, petroleum products, and other liquids pipelines have been issued by the U.S. State Department since since the promulgation of Executive Order 11423 in 1968.  Executive Order 11423 provided that, except with respect to cross-border permits for electric energy facilities, natural gas facilities, and submarine facilities:

The Secretary of State is hereby designated and empowered to receive all applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States, of: (i) pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum, petroleum products, coal, minerals, or other products to or from a foreign country; (ii) facilities for the exportation or importation of water or sewage to or from a foreign country; (iii) monorails, aerial cable cars, aerial tramways and similar facilities for the transportation of persons or things, or both, to or from a foreign country; and (iv) bridges, to the extent that congressional authorization is not required.

The State Department's Bureau of Energy Resources Office of Energy Diplomacy receives and processes permit applications for liquid product pipelines, including water and petroleum products.  The standard by which the Secretary of State reviews applications for presidential permits is prescribed by an executive order issued in 2004.  Executive Order 13337 directs the Secretary of State to authorize those border crossing facilities that the Secretary has determined would “serve the national interest."

By contrast, cross-border natural gas pipelines are regulated by the Federal Energy Regulatory Commission, while electric transmission infrastructure is regulated by the Department of Energy.  Section 3 of the Natural Gas Act requires any person desiring to export any natural gas from the United States to a foreign country or to import any natural gas from a foreign country to the United States to obtain an order from the Federal Power Commission authorizing it to do so.   Section 202(e) of the Federal Power Act requires any person desiring to transmit any electric energy from the United States to a foreign country to obtain an order from the Federal Power Commission authorizing it to do so.

Executive Order 10485 designated the FERC's predecessor agency, the Federal Power Commission, to receive applications for natural gas and electricity facilities.  When the Department of Energy Organization Act of 1977 eliminated the Federal Power Commission, it shifted most of the FPC's responsibilities to the FERC, but Section 402(f) of that act specifically reserved import/export permitting functions for the Department of Energy.  For facilities governed by the Department of Energy, the Presidential Permit process is governed by Part 205 of the Department's rules.  In 2006, the Department delegated its authority to issue Presidential Permits for natural gas pipeline border crossings to FERC, via DOE Delegation Order No. 00-004.00A.

Infrastructure projects subject to the Presidential Permit process range widely in type, scope, and controversy, from the proposed Keystone XL oil pipeline from Canada to the proposed Champlain Hudson Express high-voltage direct current electric transmission line.