The orders issued on Keystone and Dakota Access focus on very different processes, but seek the same result of expediting those processes, including by relying on existing environmental review. Significantly, neither mandate a particular result, though the President has said he supports both projects.
The order on construction of the Keystone XL Pipeline maintains the long-standing delegation to the State Department to make a “national interest” determination, including by undertaking NEPA review. But the new order then moves to expedite review by setting a 60 day deadline for the State Department and deeming the existing environmental review to fulfill the NEPA review requirement. The order then goes on to require the Army Corps of Engineers, the BLM, Fish & Wildlife Service and other agencies to expedite any review of domestic construction under their jurisdictions.
The Dakota Access pipeline does not require a presidential permit but instead is subject to the same agency reviews as those mentioned in the Keystone order for wholly domestic construction. Similar to that order, the President requires the relevant agencies to expedite their reviews and consider existing environmental assessments, while authorizing the Corps to rescind a more recent decision to expand environmental review.
Given the controversial nature of both projects, litigation is likely once any final decisions are made on the relevant permits. Here again the different nature of the processes will be significant. It will be harder to challenge a presidential permit decision since it is based on executive authority and not statutory law. A Corps decision in the Dakota Access matter, on the other hand, is like any other major federal permitting action, which was subject to challenge under the Administrative Procedure Act, NEPA and other relevant statutes.
This post was written by James Rubin. Mr. Rubin is a partner at the international law firm Dorsey & Whitney. Before going into private practice, Mr. Rubin served for 15 years in the Environment and Natural Resources Division of the U.S. Department of Justice, where he was an assistant chief in the Law and Policy Section, a trial attorney in the Environmental Defense Section, and an agency representative to the White House Climate Change Task Force. He was on was on several US delegations from 1995-2000, including at Kyoto. He coordinated the division’s international program and worked on a wide variety of domestic and international environmental policy and litigation matters, as well as trade and investment negotiations and disputes.