On January 24, President Donald J. Trump signed presidential memoranda jumpstarting the stalled Keystone XL (“Keystone”) and Dakota Access (“Dakota”) pipelines.  President Obama previously rejected TransCanda Corp’s application for a permit to cross the United States-Canadian border, finding at the time that the 1,700-mile pipeline was not in the national interest.  The United States Army Corps of Engineers (“USACE”) similarly decided  last month that it would not issue an easement allowing the Dakota pipeline to cross federal land in North Dakota, opting instead to consider alternative routes to reduce environmental and cultural impacts to the Standing Rock Sioux Tribe.

The Keystone Memorandum (“Keystone Memo”) invites TransCanda to promptly resubmit is application to the Department of State for a Presidential permit to construct and operate the pipeline.  The Keystone Memo also directs the Secretary of State to reach a final permitting decision within 60 days of reapplication.  President Trump further instructs the Secretary of the Army to take all actions necessary and appropriate to expeditiously review and, if warranted, approve requests for authorizations to use Nationwide Permit 12 under Section 404(e) of the Clean Water Act with respect to crossings of “waters of the United States.”  The Keystone Memo likewise directs the Department of the Interior to promptly review requests for rights-of-way and temporary use permits over federal lands.

The Dakota Memorandum (“Dakota Memo”) primarily requires the Secretary of the Army to review and approve in an expedited manner, to the extent permitted by law, requests for approvals to construct and operate the pipeline, including easements or rights-of-way to cross federal lands, as well as permits or approvals under Section 404 of the Clean Water Act and Section 14 of the Rivers and Harbors Act.   The Dakota Memo further instructs the Secretary of the Army to consider rescinding its prior decision to not issue an easement to the pipeline to cross federal land, and to consider prior environmental reviews sufficient to satisfy USACE’s obligations under the National Environmental Policy Act.

On the same day, President Trump issued another memorandum directing the Secretary of Commerce to develop a plan requiring all new, retrofitted, repaired or expanded pipelines (or portions thereof) to use materials and equipment produced in the United States to the maximum extent possible.  The plan must be submitted within 180 days.

For more information on these memoranda, please contact Peter Glaser or Andy Flavin.