	Introduction

For decades, executive permission in the form of a Presidential Permit has been required for the construction, connection, operation, and maintenance of certain facilities that cross the United States' borders with Canada and Mexico. The constitutional basis for the President's cross-border permitting authority was examined in a prior CRS report. However, questions remain about the manner in which this authority is exercised among the agencies to which it has been delegated. In particular, some Members of Congress and affected stakeholders seek greater clarity about how Presidential Permit applications are reviewed for various kinds of cross-border energy projects, including the degree to which there may be differences or similarities among the various agency approaches to evaluating environmental impacts of proposed projects and in determining whether they serve the national or public interest. With few exceptions, requests for Presidential Permits for cross-border pipelines or electric transmission lines have involved projects extending a relatively short distance into a U.S. border state before connecting to some existing facility (e.g., a refinery in Texas or a power plant in Arizona). The Trump Administration issued a Presidential Permit for that project on March 23, 2017. Given the issues that arose in the wake of TransCanada's application for the Keystone XL pipeline, Congress may again propose legislation intended to expedite approval of future applications for Presidential Permits. This report focusses on the Presidential Permit review processes for cross-border energy infrastructure as implemented by these agencies:
The Department of State for pipelines and similar facilities that transport liquids such as petroleum, petroleum products, and other hazardous liquids; The Federal Energy Regulatory Commission (FERC) for natural gas pipelines and associated facilities; and The Department of Energy (DOE) for electricity transmission lines and associated facilities. The State Department makes its permitting decisions primarily in accordance with directives in Executive Order (E.O.) 11423, as amended by E.O. 13337. FERC and DOE make permitting decisions in accordance with E.O. 10485, as amended by E.O. 12038. Broadly speaking, each executive order requires the respective agency to do the following:
gather necessary project-specific information from the applicant; seek input from specific outside federal agencies; and decide whether to seek input from additional local, state, tribal, or federal agencies or from members of the public. Under the applicable executive order, each agency is required to issue a Presidential Permit if, after evaluating all relevant project information, the agency determines that the project would "serve the national interest" (pursuant to E.O. 13337) or be "consistent with the public interest" (pursuant to E.O. Each agency authorized to issue Presidential Permits informs its decisionmaking regarding such permits using information gathered in accordance with its procedures implementing the National Environmental Policy Act of 1969 (NEPA). In 2015, the State Department under the Obama Administration did deny TransCanada's application for a Presidential Permit, finding that the pipeline would not meet the national interest. Each agency evaluates project-specific impacts that are reasonably foreseeable. More specifically, apart from environmental considerations identified during the NEPA process, the State Department has identified the following as issues it has considered in past decisions:
the impacts the proposal would have on the diversity of supply and security of transport pathways for crude oil imported to the United States; the impact of a cross-border facility on the relations with the country to which it connects; the stability of various foreign suppliers of crude oil and the ability of the United States to work with those countries to meet overall environmental and energy security goals; the impact of the proposal on broader foreign policy objectives, including a comprehensive strategy to address climate change, bilateral relations with neighboring countries, and energy security; the potential economic benefits to the United States of constructing and operating the proposed project; and the relationship between the proposed project and goals to reduce reliance on fossil fuels and to increase use of alternative and renewable energy sources. The three cross-border pipelines that have required preparation of an EIS are TransCanada's Keystone and Keystone XL pipelines and Enbridge Energy's Alberta Clipper. Therefore, the scope of environmental review has been limited by the footprint of the projects. 10485. Action Related to the Keystone XL Permit Application

In recent years, largely within the context of the Obama Administration's consideration of the Presidential Permit application for the Keystone XL pipeline project, Congress has acted on numerous occasions to influence the State Department permitting process or to assert direct congressional authority over permit approval through new legislation. On March 23, 2017, the State Department issued a final Record of Decision and National Interest Determination (ROD/NID) documenting the State Department's determination that the project would serve the national interest.
Executive permission in the form of a Presidential Permit has long been required for the construction, connection, operation, and maintenance of certain facilities that cross the United States borders with Canada and Mexico. The constitutional basis for the President's cross-border permitting authority has been addressed by the courts, but questions remain about the manner in which this authority is exercised among the agencies to which it has been delegated. In particular, some Members of Congress and affected stakeholders seek greater clarity about how Presidential Permit applications are reviewed for various kinds of cross-border energy projects.
Agency Authorities and Decisionmaking
Congress has shown particular interest in the Presidential Permit review processes for cross-border energy infrastructure as implemented by
The Department of State for pipelines that transport petroleum, petroleum products, and other hazardous liquids; The Federal Energy Regulatory Commission (FERC) for natural gas pipelines; and The Department of Energy (DOE) for electricity transmission lines.
The State Department makes its permitting decisions primarily in accordance with directives in Executive Order 11423 (E.O.), as amended by E.O. 13337. FERC and DOE make permitting decisions in accordance with E.O. 10485, as amended by E.O. 12038. Broadly speaking, each executive order requires the respective agency to
gather necessary project-specific information from the applicant; seek input from specific outside federal agencies; and decide whether to seek input from additional local, state, tribal, or federal agencies or from members of the public.
Under the applicable executive order, each agency is required to issue a Presidential Permit if, after evaluating all relevant project information, the agency determines that the project would "serve the national interest" (pursuant to E.O. 13337) or be "consistent with the public interest" (pursuant to E.O. 10485). For the most part, agencies gather, evaluate, and consider project-related information within the framework of conducting an environmental review. Such reviews are generally conducted in accordance with each agency's process for complying with the National Environmental Policy Act (NEPA).
In documenting compliance with NEPA, each agency evaluates the direct and indirect effects, including any cumulative impacts, of issuing the permit. To do so, each agency generally looks at the effect of constructing the entire project, not just the portions that would cross the border (i.e., the action for which the Presidential Permit is required). Historically, evaluating impacts of the entire project would not necessarily involve a complex or particularly time-consuming review. With few exceptions, past applications for Presidential Permits have been for pipelines or transmission lines that extend a relatively short distance into a U.S. border state. Recently, however, several pipeline projects—Enbridge Energy's Alberta Clipper and TransCanada's Keystone and Keystone XL pipeline—have involved projects that are hundreds of miles long and cross multiple states. It was the larger scope of such projects that, in part, resulted in increased national attention to the most recent proposal, the Keystone XL pipeline. In 2015, the State Department under President Obama denied TransCanada's application for a Presidential Permit for the project, finding that it did not serve the national interest. However, a new permit application was approved on March 23, 2017, when the State Department, under the Trump Administration, found that the project did serve the national interest.
Issues for Congress
From 2011 through 2015, as the State Department considered permit applications for the Keystone XL pipeline project, Congress proposed a number of bills intended to affect the State Department's decisionmaking process. Although a permit has been issued for that project, Congress may again consider legislative options to expedite agency decisions on future permit applications. Congress may choose to address issues that arose during the Keystone XL permitting process. For example, during the review, some stakeholders questioned the scope of the NEPA review—some were concerned that it was too broad, others that it was too narrow. Some also argued there was uncertainty over criteria the State Department used to determine whether the project would serve the national interest. Congress could potentially clarify these issues through legislation aimed at defining federal agency roles in authorizing cross-border projects.