Tag: Executive Order

Declaring National Emergency, President Trump Orders Restrictions on Electrical Equipment Supplied By “Foreign Adversaries”

In an Executive Order issued on May 1, 2020, President Trump declared that the unrestricted supply of electrical equipment from foreign countries represents an “unusual and extraordinary threat to the national security, foreign policy, and economy of the United States” because foreign adversaries may use such equipment to sabotage the nation’s electric power supply. While the scope of the order will not be clear until rules to carry it out are put in place, the order could prove disruptive to the supply chains for substations, transformers, and other equipment essential to operation of the nation’s electric power system, as well as to a new generation of “smart grid” devices that are transforming the electric grid, especially for devices that are manufactured in China.

The vulnerability of the electric system to malicious software and other threats embedded in equipment or components manufactured in the territory of hostile powers has long been recognized as a potential problem. In fact, the North American Electric Reliability Corporation, the entity responsible for promulgating and enforcing mandatory electric reliability standards, has developed a reliability standard (CIP-013-1) governing “Supply Chain Risk Management,” although the effective date for the standard was recently delayed by the Federal Energy Regulatory Commission due to the COVID-19 crisis.

In contrast to CIP-013-1, which requires each entity subject to the standard to develop its own plan for ensuring that relevant supply chains are free from cybersecurity risks, the new Executive Order contemplates a top-down approach, in which certain “foreign adversaries” would be identified and imports from those “adversaries” would be prohibited, although transactions with certain vendors would be allowed if they are on a “pre-approval” list. Notably, the Executive Order applies “notwithstanding any contract entered into or any license or permit granted prior to the date of this order” and authorizes the Secretary of Energy to act against “pending transactions” that might violate the order. Hence, the Executive Order could be applied retroactively, particularly to transactions that are now in process.

This aspect of the Executive Order is particularly troubling because it is likely to be at least several months before the exact reach of the Order is known. The Order directs the Secretary of Energy, in cooperation with other federal departments, to promulgate rules carrying out the Executive Order within 150 days. It is likely that the list of “foreign adversaries” will include China, which is an important link in the supply chain for many companies, as well as Russia, Iran, and North Korea. But that remains an unknown, as does the list of suppliers that might be included on the pre-approved list. The Executive Order is limited to the “bulk electric system”—high voltage transmission lines, substations, and related equipment – but contains a provision that could expand its reach to electric distribution systems, an area generally left to state regulation, based on recommendations from a security task force to be formed under the Executive Order.

The Executive Order creates new and potentially serious regulatory, contractual, and supply chain management issues for companies engaged in operation of the bulk electric system, in the manufacture of equipment necessary for operating the bulk electric system, and for emerging “smart grid” technologies that promise to improve the operation and efficiency of the bulk electric system.

© 2020 Beveridge & Diamond PC

For more on America’s electric infrastructure, see the National Law Review Environmental, Energy & Resource law section.

President Trump Expected to Sign Executive Order to “Temporarily Suspend Immigration to the United States”

Shortly after 10:00 p.m. last night, President Donald Trump announced—through Twitter—that he “will be signing an Executive Order to temporarily suspend immigration into the United States,” because of the “attack” from the COVID-19 pandemic on the United States and “to protect the jobs of our GREAT American Citizens.”

Other than President Trump’s Tweet, neither the White House, the Department of Homeland Security, State Department, nor any other federal agency provided any guidance or information as to what exactly the suspension of immigration into the United States actually means, how expansive such a suspension would be, or the number of individuals and countries that such an executive order could affect.

Global Travel Ban to the United States

On March 19, 2020, we wrote about the travel restrictions the White House imposed on the admission of foreign nationals into the United States, to limit the spread of COVID-19. Since then,

foreign nationals who were in any of the following countries in the 14-days before traveling to the United States (were and still) are barred from entering and will be turned away at U.S. airports, ports, border crossings, and other ports-of-entry: Austria, Belgium, China, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Iran, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

Moreover, all non-essential travel between the United States, Canada, and Mexico was initially restricted on March 18, 2020, for 30 days. Yesterday, however, President Trump extended the non-essential travel restriction between the three counties for an additional 30 days—through May 20, 2020.

Official Guidance to Suspend Immigration

As of today, there are no other restrictions on the entry to the United States related to the COVID-19 pandemic, other than those noted here. President Trump’s Tweet is still just a Tweet. No official guidance has been issued as to the halting of “all immigration” into the United States.

©2020 Norris McLaughlin P.A., All Rights Reserved

NEPA Overhaul? CEQ Proposes Significant Changes to Federal Environmental Review

The Council on Environmental Quality (CEQ), a division of the Executive Office of the President, today published in the Federal Register a Notice of Proposed Rulemaking that would make significant changes to its regulations implementing the National Environmental Policy Act (NEPA).

CEQ’s efforts spring from a 2017 Executive Order that directed it to “enhance and modernize the Federal environmental review and authorization process” by, among other initiatives, ensuring “that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process.”  Today’s publication, the first comprehensive update of the CEQ NEPA regulations since their promulgation in 1978, proposes noteworthy reductions in the scope of and timeline for federal environmental review.

Key proposed changes include:

  • Limiting the scope of the NEPA review.  CEQ proposes to exclude from NEPA review non-federal projects with minimal federal funding or minimal federal involvement such that the agency cannot control the outcome on the project, reasoning that “[i]n such circumstances, there is no practical reason for an agency to conduct a NEPA analysis because the agency could not influence the outcome of its action to address the effects of the project.”  The impact of this change on privately-funded (i.e., non-federal) projects is unclear, however, because major federal actions subject to NEPA review under the proposed rule include “actions approved by permit or other regulatory decision as well as Federal and federally assisted activities.”
  • Eliminating cumulative impact analyses.  CEQ proposes to change how to address cumulative impacts, such that analysis of cumulative effects is not required under NEPA, finding that “categorizing and determining the geographic and temporal scope of such effects has been difficult and can divert agencies from focusing their time and resources on the most significant effects,” and “can lead to encyclopedic documents that include information that is irrelevant or inconsequential to the decision-making process.”
  • Requesting comments on GHGs.  The effect that elimination of cumulative impact analyses will have on NEPA review of the greenhouse gas (GHG) impacts of a proposed project is unclear.  Just last summer, in its proposed draft guidance on how NEPA analyses should address GHG emissions, “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” CEQ stated that “the potential effects of GHG emissions are inherently a global cumulative effect.” CEQ has invited comment on this issue, noting that if it finalizes its proposed rulemaking, it would review the draft GHG guidance for potential revisions consistent with the regulations.
  • Establishing time limits of two years for completion of Environmental Impact Statements (EISs) and one year for completion of Environmental Assessments.  Currently, the average time for federal agencies to complete an EIS is four and a half years.  A two-year presumptive time limit, measured from the date of the issuance of the notice of intent to the date a record of decision is signed, would bring the majority of EISs within the timeline achieved by only a quarter of EISs prepared over the last decade, according to the CEQ’s report on EIS Timelines.

Because the rulemaking proposes sweeping changes to NEPA, these changes likely will be challenged in court.  Nevertheless, the changes are indicative of a federal push to reduce the scope and time of environmental review, particularly related to highway and energy infrastructure projects.  In an op-ed piece, CEQ Chairwoman Mary B. Neumayr stated that the proposed changes “would modernize, simplify, and accelerate the NEPA process in order to promote public involvement, increase transparency, and enhance the participation of states, tribes, and localities. These changes would also reduce unnecessary burdens and delays and would make important clarifications to improve the decision-making process.”

Public comments are due March 10, 2020.  CEQ will host two public hearings on the proposed rule: in Denver, CO, on February 11, 2020 and in Washington, DC, on February 25, 2020.

©2020 Pierce Atwood LLP. All rights reserved.

More from The Council on Environmental Quality in the National Law Review Environmental, Energy & Resources legal articles’ section.

Executive Orders Aim to Streamline Energy Infrastructure Projects

On April 10, 2019, President Trump signed two executive orders intended to address a range of legal and procedural hurdles commonly facing infrastructure projects, particularly in the energy sector. Most notably, the executive orders require the U.S. Environmental Protection Agency (EPA) to review and revise Section 401 water quality certification procedures and increase the president’s direct role in permitting cross-border projects.

In recent years, states and tribes have increasingly utilized Section 401 of the Clean Water Act, 33 U.S.C. § 1341, to delay, condition, or deny permits and licenses for projects within their borders that may violate established water quality standards. Executive Order 13868 directs EPA to review these water quality certification procedures in consultation with states, tribes, and other federal agencies, with a focus on:

    • Promoting federal-state cooperation.
    • Clarifying the appropriate scope of water quality reviews.
    • Identifying appropriate conditions for certifications.
    • Establishing reasonable review times for certifications.
    • Delineating the nature and scope of information that states and tribes may need in acting promptly on a certification request.

The executive order contemplates several forthcoming EPA actions with aggressive deadlines. Within 60 days, EPA must issue new water quality certification guidance to states, tribes, and federal agencies. Within 120 days, EPA must publish a proposed rule revising the existing regulations that implement Section 401. Other federal agencies that issue permits or licenses subject to Section 401 certification requirements must then revise their regulations and guidance to conform to EPA’s actions. These actions will afford numerous commenting opportunities and, given the executive order’s focus on “Promoting Energy Infrastructure,” the agencies likely will be interested in specific ideas, experiences, and feedback of project proponents.

Executive Order 13868 is not limited to Section 401. It further directs the U.S. Department of Transportation (DOT) to propose a rule newly allowing transport of liquefied natural gas (LNG) in rail tank cars. DOT must also revise its safety regulations for LNG facilities to reflect modern industry practices. Additionally, the executive order calls for scrutiny of retirement funds’ divestments from the energy sector. It also aims to facilitate renewals and reauthorizations of energy rights-of-way and similar authorizations. Lastly, it seeks information from agencies on barriers to a national energy market, intergovernmental assistance, and opportunities for economic growth in the Appalachian region.

Executive Order 13867 aims to end the multi-year reviews of cross-border infrastructure, such as pipelines and bridges, principally administered by the State Department. These projects have attracted national attention and controversy, as well as litigation. The Secretary of State will continue to receive all applications for such cross-border projects but will face a highly aggressive 60-day deadline to complete its review and provide recommendations to the president for a final permitting decision. The executive order stipulates that the State Department must revise its regulations to reflect these requirements by May 29, 2020. Because presidential actions are not subject to National Environmental Policy Act (NEPA) review, and to meet the tight deadline, such projects might undergo less review than they do today, which in turn may foster more litigation.

Overall, these executive orders afford opportunities to reduce barriers to energy infrastructure projects and improve the efficiency of the permitting process. Whether they yield tangible results remains to be seen. The substantive details and any legal challenges will emerge through the various agency actions implementing these executive orders, which the regulated community should follow and closely participate in.

 

© 2019 Beveridge & Diamond PC.

Implementation of “Buy American” for Infrastructure Projects Begins May 1st

In 2017, President Trump issued an executive order entitled “Buy American and Hire American” which stated a commitment to do just that. Earlier this year, expanding on this policy, President Trump issued an executive order entitled “Strengthening Buy-American Preferences for Infrastructure Projects.” This order requires federal agencies to encourage contractors working on infrastructure projects that receive federal grants or loans to purchase domestically produced materials. Pursuant to the order, agencies are required to begin encouraging use of domestic products by May 1st, and requires submission of an implementation plan by May 31st.

The new executive order seeks to fill somewhat of a gap in current federal legislation that will no doubt have an effect on an investor’s analysis of a public-private partnership delivery model. The federal Buy American Act applies domestic preference to manufactured materials that are used in the construction of federal projects. Then, there are a set of federal laws that have domestic preference provisions for specific materials in specific construction projects that receive federal funding. The new executive order applies to “covered programs,” which basically includes infrastructure projects that received financial assistance from a federal program, but do not currently include domestic preference requirements. In other words, the policy now potentially applies to any project that receives federal funds, even if it is not solicited by the federal government.

The term “infrastructure projects” is broadly defined, and will apply to local projects that receive federal assistance like aviation, surface transportation, ports, water resources, and energy production projects. The new executive order expands both the types of materials and types of projects for which the Buy American policy is applicable. The interplay with rules for local preference enforced by local governments is unclear, although existing federal regulations typically prohibit the use of local preference for federally funded projects. Also unclear is whether there is or will be an actual enforcement mechanism. The significance and magnitude of this latest push for stronger domestic preference will be revealed in the coming weeks as federal agencies begin to encourage the policy and submit plans for implementation.

© 2019 Bilzin Sumberg Baena Price & Axelrod LLP. All Rights Reserved.

This post was written by Elise Holtzman and Albert E. Dotson, Jr.

Read more about US policy updates on the National Law Review’s administrative & regulatory page.

White House Encourages Coordination of Infrastructure Permitting Through One Federal Decision Memorandum

On April 9, 2018, the White House announced that twelve federal agencies had signed the One Federal Decision Memorandum (“MOU”), establishing a coordinated and timely process for environmental reviews of major infrastructure projects. The MOU addresses one of President Trump’s signature policy promises from the 2018 state of the union – to reduce the infrastructure permitting process to at most two years.

The MOU comes in response to Executive Order 13807, signed by the President on August 15, 2017. The Executive Order directed federal agencies to, among other things, develop a two year permitting timeline for “major infrastructure projects,” and designate a “lead agency” to shepherd projects through the permitting process. The President specifically sought to address inefficient and duplicative practices such as multiple agencies producing separate Environmental Impact Statements.

The MOU and its accompanying Implementation Memorandum provide instruction to and agreement among agencies on how to improve the coordination and execution of permitting reviews. Benchmark improvements include:

  • A single Environmental Impact Statement for all agencies

  • A single Record of Decision except in specified circumstances

  • A two-year average time period for concluding all environmental reviews and authorization decisions for major infrastructure projects

  • Written concurrences from cooperating agencies at interim milestones in the consolidated Permitting Timetable governi­­­ng the multi-agency review-and-authorization process for a project

In evaluating the potential impact of these actions in comparison to prior initiatives to improve the permitting process, two additional factors should be considered.

First, this Administration appears committed to improving infrastructure permitting beyond issuing these documents. The current actions anticipate further change within the Executive Branch, at the White House’s direction, whereas similar actions under past administrations represented the culmination of an initiative.

Second, specific requirements in the Implementation Memorandum and MOU will require agencies to change their current processes in order to comply, instead of past efforts which largely encouraged Agencies to achieve better results using existing methods.

For example, the new guidance requires written concurrence from cooperating agencies at specific interim milestones within an established, consolidated permitting timetable. The guidance also requires agencies, with some exceptions, to develop a consolidated record supporting the One Federal Decision, instead of isolated administrative records within each agency. Implementing these and other changes will require modification of the status quo for many agencies. Indeed, the guidance calls for signatory agencies to submit plans (within 90 days) to implement the MOU through new guidance or regulations.

The following is a summary of key points from the Implementation Memorandum and MOU and a detailed list of specific provisions.

General Agreements – Outlines the overarching features of the MOU including a requirement for federal agencies to work together to develop a single Environmental Impact Statement and Record of Decision (“ROD”), and to issue all necessary authorization decisions within 90 days of the ROD.

Permitting Timetable – Provides guidance on the milestones to be included in the Permitting Timetable, including estimated milestones for which the project sponsor is to develop and submit complete applications and any other information required for Federal authorization of the project, including required authorization decisions by non-Federal entities.

Agency Roles and Responsibilities – Provides further details on the duties of lead agencies in preparing the federal EIS and outlines roles for cooperating and participating agencies. For example, cooperating agencies may only provide written comment on issues within their substantive areas of expertise.

Scoping and Concurrence Points – Provides for using the NEPA scoping process to develop relevant analyses, studies and engineering designs needed in order for all agencies to be able to sign a single ROD. Requires that the environmental review process be conducted concurrently with the applicable authorization decision processes, and, as such, the lead agency should obtain a written concurrence from all cooperating agencies whose authorization is required for the project at three key milestones: 1) Purpose and Need, 2) Alternatives To Be Carried Forward for Evaluation, and 3) the Preferred Alternative.

Elevation of Delays and Dispute Resolution – Directs agencies to use dispute resolution procedures within applicable laws and to defer to staff who have day-to-day project involvement. Where disputes are anticipated to delay a Permitting Milestone, disputes are to be elevated within the federal agencies.

Exceptions – Provides a number of exceptions to the MOU including the ability of lead agencies to extend the 90 day decision deadline.

© 2018 Bracewell LLP.

This post was written by Kevin A. Ewing, Jason B. Hutt and Christine G. Wyman of Bracewell LLP.

President Trump Issues Executive Order Amending Executive Order 13597

On June 21, President Trump issued an Executive Order Amending Executive Order 13597. This Executive Order rescinds a  provision, subsection (b)(ii) of Section 2,  of an Obama Administration era Executive Order Establishing Visa and Foreign Visitor Processing Goals and the Task Force On Travel and Competitiveness that read, “ensure that 80 percent of nonimmigrant visa applicants are interviewed within three weeks of receipt of application.”

Many observers view this rescission as necessary due to conflicting timelines presented by the Executive Orders with ongoing more aggressive vetting of applicants.

Fourth Circuit Ruling Continues Star-Crossed Fate of Trump Administration Travel Ban

On May 25, 2017 the U.S. Court of Appeals for the Fourth Circuit upheld a lower court’s nationwide injunction against the Trump administration’s executive order (EO) suspending entry into the United States of foreign nationals from six designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. This ruling maintains the current status quo under which key provisions of the travel ban have been blocked. As a result, employees from the designated countries remain free to travel to and request admission into the United States.

The EO at issue in the case, “Protecting the Nation from Foreign Terrorist Entry into the United States,” is a revised version of the original executive order that had also encountered legal obstacles. Under the revised version of the executive order, the Trump administration had attempted to address some of the early objections to the original executive order by excluding certain foreign nationals from its scope, such as those who already had visas, or who were green card holders or dual nationals traveling on a passport from a non-designated country. Despite those changes, the revised EO, issued on March 6, 2017, met with challenges and legal objections similar to the original. Section 2(c) of the revised EO, “Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period,” was the central focus in this case.

While the court was not directly evaluating the constitutionality of the travel ban, the judges took a close look at the strength of the plaintiff’s Establishment Clause claim against the EO. The Establishment Clause prohibits the government from making any law respecting an establishment of religion. In defense of the EO, the administration has asserted a need to accord deference to the president’s actions taken to protect the nation’s security. The court, however, noted that the president’s authority cannot go unchecked, and included an examination of past statements made by President Donald Trump in its analysis.

Stating that the Trump administration’s travel ban was rooted more in the intent to bar Muslims from the country rather than in the government’s asserted national security interest, the court found that the public interest argued in favor of upholding the district court’s preliminary injunction.

Attorney General Jeff Sessions issued a statement confirming that the government intends to appeal the Fourth Circuit’s decision to the Supreme Court of the United States. A separate nationwide injunction against the EO is currently under appeal in the Ninth Circuit. Oral arguments were heard in that case on May 15, 2017, and a decision is pending. Because the case is still ongoing, this latest decision should not be considered a final determination of the EO’s fate.

This post was written by Jordan C. Mendez and Lowell Sachs of  Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

President Trump Signs New Executive Order: “Buy American and Hire American”

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “made in the USA buy american and hire americanBuy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.

  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
 ©2017 Greenberg Traurig, LLP. All rights reserved.

Interior Secretary Immediately Implements President’s Executive Order on Energy and Climate

President Trump Executive Order Environmental RegulationNew Secretary of the Interior Ryan Zinke wasted no time implementing the mandates of the Trump Administration’s most recent Executive Order (EO), “Promoting Energy Independence and Economic Growth,” which was issued on March 28. On March 29, the Secretary issued two Secretarial Orders (SO) implementing the March 28 Order, and took additional administrative action consistent with its mandates. Separately, the Secretary has reinstated a public-private advisory committee to address royalty issues.

The first Order, SO 3348, overturns the Obama Administration’s 2016 moratorium on federal coal leasing, and terminates the programmatic environmental impact statement process under National Environmental Policy Act (NEPA) that would have re-evaluated the environmental impacts of the Bureau of Land Management (BLM) coal leasing program.  Hours after this SO was issued, a coalition of environmental groups sued the Department in the U.S. District Court for the District of Montana challenging the decision to lift the moratorium and resume federal coal leasing without first completing the NEPA process.

The second Order, SO 3349, implements the agency review provisions of the March 28 EO directed to the Department of the Interior.  Specifically, SO 3349:

  1. revokes SO 3330, “Improving Mitigation Policies and Practices of the Department of the Interior,” which was a prior Department-wide directive to adopt more landscape-level mitigation strategies and more rigorous compensatory mitigation criteria;

  2. directs each bureau to review all regulations, orders, and policies that could hamper energy development and, where permissible, rescind, revoke or suspend such regulations, orders, and policies;

  3. directs review of Departmental actions impacting energy development, including re-evaluation of BLM’s “venting and flaring rule” for oil and gas leases, for consistency with the policies set forth in the March 28 EO;

  4. directs BLM to “expeditiously proceed” with a proposal to rescind its 2015 hydraulic fracturing rule, which was invalidated by a federal district court and is now on appeal to the Tenth Circuit; and

  5. directs each bureau and office to identify other existing actions that could potentially burden the development of domestic energy resources, particularly oil, gas, coal, and nuclear resources.

The SO affords the Interior agencies little time to accomplish this work. Deadlines fall within the next 90 days, including as soon as 14 days.

Finally, Secretary Zinke signed a charter re-establishing a Royalty Policy Committee (RPC).  As it had done in prior years, the RPC will operate as a Federal Advisory Committee Act body providing regular advice to the Secretary on fair market value and collection of revenue from federal and Indian mineral and energy leases, including renewable energy leases.  The group will consist of up to 28 federal, local, Tribal, state, and other stakeholders, and will also advise on royalty-related regulatory matters.

ARTICLE BY James M. Auslander, Peter J. Schaumberg & John G. Cossa of Beveridge & Diamond PC
© 2017 Beveridge & Diamond PC