Oil pipelines and Trump: executive actions vs executive orders

By Patrick C. Miller | January 31, 2017

There’s a reason President Donald Trump signed two separate presidential memos rather than executive orders to move forward with the construction and completion of the Dakota Access and Keystone XL pipelines.

According to Scott Marrs, regional managing partner of the Akerman law firm’s Texas offices, “An executive order is much stronger because it carries the weight of federal law; a presidential memorandum does not. It carries a lot of weight, obviously, coming from the president, but it’s an executive action, not an executive order.”

Marrs has more than 25 years of experience in litigation and legal counseling in such areas as oil and gas exploration, production, transportation, storage and well service. He’s on the Institute for Energy Law advisory board and previously served on the legal, natural gas and land departments of a major energy company.

“Trump did a presidential memorandum separately for each of those two pipelines and the reason for that is that different agencies have different authority over those pipelines,” Marrs explained.

For the Keystone XL project, the U.S. Department of State is the primary agency involved because the pipeline crosses the international border between the U.S. and Canada. The Secretary of the Army and the U.S. Army Corps of Engineers have jurisdiction over the Dakota Access Pipeline because it crosses federal land.

Marrs said an executive order gives presidents the power to ensure that the laws are faithfully executed. The U.S. Supreme Court has ruled that only Congress—not presidents—have the authority to make new law.

“The president cannot be a lawmaker because it would blur the line between the executive and legislative branches,” Marrs noted. “But with an executive order, he can order certain agencies to do certain things as long as he’s not creating law or violating or changing a law already passed by Congress.”

A presidential memorandum serves a different purpose. Marrs said it’s Trump’s way of telling the Department of State and the Corps of Engineers to expeditiously review and approve the Keystone XL and Dakota Access pipeline projects—if they comport with the law.

“I think the message is: let’s go. Let’s get America back on track,” he said. “We’re not talking about circumventing the requirements of the Corps; we’re talking about making a decision. So—in light of how long both these projects have been on the books—we’re expediting them.”

Marrs pointed out that Trump also signed an executive order which says it’s the administration’s policy to expedite reviews and approvals for high-priority infrastructure projects. These include the U.S. electric grid, the telecommunications system and upgrades and repairs to ports, airports, pipelines, bridges and highways.

“My guess is that with these pipeline projects, Trump will indeed categorize them as high-priority infrastructure projects,” Marrs said. “So you’ve got that executive order working in tandem with the memorandum directives to the agencies.”

Marrs sees Trump’s actions as an important shift away from federal government delays and red tape aimed at delaying or killing energy infrastructure projects.

“The delays on the Dakota Access and Keystone projects created great uncertainty,” he explained. “It’s kind of self-fulfilling because with uncertainty comes an inability to get capital infusion for your business. But with certainty like we’re beginning to see now, you see an influx of capital which creates new projects which creates a growing economy which creates energy certainty for the U.S. It has a positive domino effect across the board.”