Promoting Energy Infrastructure and Economic Growth

Executive Order 13868 of April 10, 2019

Promoting Energy Infrastructure and Economic
Growth

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, it is hereby ordered as follows:

Section 1. Purpose. The United States is blessed with
plentiful energy resources, including abundant supplies
of coal, oil, and natural gas. Producers in America
have demonstrated a remarkable ability to harness
innovation and to cost-effectively unlock new energy
supplies, making our country a dominant energy force.
In fact, last year the United States surpassed
production records set nearly 5 decades ago and is in
all likelihood now the largest producer of crude oil in
the world. We are also the world's leading producer of
natural gas, and we became a net exporter in 2017 for
the first time since 1957. The United States will
continue to be the undisputed global leader in crude
oil and natural gas production for the foreseeable
future.

These robust energy supplies present the United States
with tremendous economic opportunities. To fully
realize this economic potential, however, the United
States needs infrastructure capable of safely and
efficiently transporting these plentiful resources to
end users. Without it, energy costs will rise and the
national energy market will be stifled; job growth will
be hampered; and the manufacturing and geopolitical
advantages of the United States will erode. To enable
the timely construction of the infrastructure needed to
move our energy resources through domestic and
international commerce, the Federal Government must
promote efficient permitting processes and reduce
regulatory uncertainties that currently make energy
infrastructure projects expensive and that discourage
new investment. Enhancing our Nation's energy
infrastructure, including facilities for the
transmission, distribution, storage, and processing of
energy resources, will ensure that our Nation's vast
reserves of these resources can reach vital markets.
Doing so will also help families and businesses in
States with energy constraints to access affordable and
reliable domestic energy resources. By promoting the
development of new energy infrastructure, the United
States will make energy more affordable, while
safeguarding the environment and advancing our Nation's
economic and geopolitical advantages.

Sec. 2. Policy. It is the policy of the United States
to promote private investment in the Nation's energy
infrastructure through:

    (a) efficient permitting processes and procedures
that employ a single point of accountability, avoid
duplicative and redundant studies and reviews, and
establish clear and reasonable timetables;
    (b) regulations that reflect best practices and
best-available technologies;
    (c) timely action on infrastructure projects that
advance America's interests and ability to participate
in global energy markets;
    (d) increased regulatory certainty regarding the
development of new energy infrastructure;
    (e) effective stewardship of America's natural
resources; and
    (f) support for American ingenuity, the free
market, and capitalism.

Sec. 3. Water Quality Certifications. Section 401 of
the Clean Water Act (33 U.S.C. 1341) provides that
States and authorized tribes have a direct role in
Federal permitting and licensing processes to ensure
that activities

subject to Federal permitting requirements comply with
established water quality requirements. Outdated
Federal guidance and regulations regarding section 401
of the Clean Water Act, however, are causing confusion
and uncertainty and are hindering the development of
energy infrastructure.

    (a) The Administrator of the Environmental
Protection Agency (EPA) shall consult with States,
tribes, and relevant executive departments and agencies
(agencies) in reviewing section 401 of the Clean Water
Act and EPA's related regulations and guidance to
determine whether any provisions thereof should be
clarified to be consistent with the policies described
in section 2 of this order. This review shall include
examination of the existing interim guidance entitled,
“Clean Water Act Section 401 Water Quality
Certification: A Water Quality Protection Tool for
States and Tribes” (Section 401 Interim Guidance).
This review shall also take into account federalism
considerations underlying section 401 of the Clean
Water Act and shall focus on:

(i) the need to promote timely Federal-State cooperation and collaboration;

(ii) the appropriate scope of water quality reviews;

(iii) types of conditions that may be appropriate to include in a
certification;

(iv) expectations for reasonable review times for various types of
certification requests; and

(v) the nature and scope of information States and authorized tribes may
need in order to substantively act on a certification request within a
prescribed period of time.

    (b) Upon completion of the consultation and review
process described in subsection (a) of this section,
but no later than 60 days after the date of this order,
the Administrator of the EPA shall:

(i) as appropriate and consistent with applicable law, issue new guidance
to States and authorized tribes to supersede the Section 401 Interim
Guidance to clarify, at minimum, the items set forth in subsection (a) of
this section; and

(ii) issue guidance to agencies, consistent with the policies outlined in
section 2 of this order, to address the items set forth in subsection (a)
of this section.

    (c) Upon completion of the consultation and review
process described in subsection (a) of this section,
but no later than 120 days after the date of this
order, the Administrator of the EPA shall review EPA's
regulations implementing section 401 of the Clean Water
Act for consistency with the policies set forth in
section 2 of this order and shall publish for notice
and comment proposed rules revising such regulations,
as appropriate and consistent with law. The
Administrator of the EPA shall finalize such rules no
later than 13 months after the date of this order.
    (d) Upon completion of the processes described in
subsection (b) of this section, the Administrator of
the EPA shall lead an interagency review, in
coordination with the head of each agency that issues
permits or licenses subject to the certification
requirements of section 401 of the Clean Water Act (401
Implementing Agencies), of existing Federal guidance
and regulations for consistency with EPA guidance and
rulemaking. Within 90 days of completion of the
processes described in subsection (b) of this section,
the heads of the 401 Implementing Agencies shall update
their respective agencies' guidance. Within 90 days of
completion of the processes described in subsection (c)
of this section, if necessary, the heads of each 401
Implementing Agency shall initiate a rulemaking to
ensure their respective agencies' regulations are
consistent with the rulemaking described in subsection
(c) of this section and with the policies set forth in
section 2 of this order.

Sec. 4. Safety Regulations. (a) The Department of
Transportation's safety regulations for Liquefied
Natural Gas (LNG) facilities, found in 49 CFR part 193
(Part 193), apply uniformly to small-scale peakshaving,
satellite, temporary, and mobile facilities, as well as
to large-scale import and export terminals. Driven by
abundant supplies of domestic natural gas, new LNG

export terminals are in various stages of development,
and these modern, large-scale liquefaction facilities
bear little resemblance to the small peakshaving
facilities common during the original drafting of Part
193 nearly 40 years ago. To achieve the policies set
forth in subsection 2(b) of this order, the Secretary
of Transportation shall initiate a rulemaking to update
Part 193 and shall finalize such rulemaking no later
than 13 months after the date of this order. In
developing the proposed regulations, the Secretary of
Transportation shall use risk-based standards to the
maximum extent practicable.

    (b) In the United States, LNG may be transported by
truck and, with approval by the Federal Railroad
Administration, by rail in United Nations portable
tanks, but Department of Transportation regulations do
not authorize LNG transport in rail tank cars. The
Secretary of Transportation shall propose for notice
and comment a rule, no later than 100 days after the
date of this order, that would treat LNG the same as
other cryogenic liquids and permit LNG to be
transported in approved rail tank cars. The Secretary
shall finalize such rulemaking no later than 13 months
after the date of this order.

Sec. 5. Environment, Social, and Governance Issues;
Proxy Firms; and Financing Energy Projects Through the
United States Capital Markets. (a) The majority of
financing in the United States is conducted through its
capital markets. The United States capital markets are
the deepest and most liquid in the world. They benefit
from decades of sound regulation grounded in disclosure
of information that, under an objective standard, is
material to investors and owners seeking to make sound
investment decisions or to understand current and
projected business. As the Supreme Court held in TSC
Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449
(1976), information is “material” if “there is a
substantial likelihood that a reasonable shareholder
would consider it important.” Furthermore, the United
States capital markets have thrived under the principle
that companies owe a fiduciary duty to their
shareholders to strive to maximize shareholder return,
consistent with the long-term growth of a company.

    (b) To advance the principles of objective
materiality and fiduciary duty, and to achieve the
policies set forth in subsections 2(c), (d), and (f) of
this order, the Secretary of Labor shall, within 180
days of the date of this order, complete a review of
available data filed with the Department of Labor by
retirement plans subject to the Employee Retirement
Income Security Act of 1974 (ERISA) in order to
identify whether there are discernible trends with
respect to such plans' investments in the energy
sector. Within 180 days of the date of this order, the
Secretary shall provide an update to the Assistant to
the President for Economic Policy on any discernable
trends in energy investments by such plans. The
Secretary of Labor shall also, within 180 days of the
date of this order, complete a review of existing
Department of Labor guidance on the fiduciary
responsibilities for proxy voting to determine whether
any such guidance should be rescinded, replaced, or
modified to ensure consistency with current law and
policies that promote long-term growth and maximize
return on ERISA plan assets.

Sec. 6. Rights-of-Way Renewals or Reauthorizations. The
Secretary of the Interior, the Secretary of
Agriculture, and the Secretary of Commerce approve
rights-of-way for energy infrastructure through lands
owned by or within the jurisdiction or control of the
United States. Energy infrastructure rights-of-way
grants, leases, permits, and agreements routinely
include sunset provisions. Operating facilities in
expired rights-of-way creates legal and operational
uncertainties for owners and operators of energy
infrastructure. To achieve the policies set forth in
section 2 of this order, the Secretaries of the
Interior, Agriculture, and Commerce shall:

    (a) develop a master agreement for energy
infrastructure rights-of-way renewals or
reauthorizations; and
    (b) within 1 year of the date of this order,
initiate renewal or reauthorization processes for all
expired energy rights-of-way grants, leases, permits,
and

agreements, as determined to be appropriate by the
applicable Secretary and to the extent permitted by
law.

Sec. 7. Reports on the Barriers to a National Energy
Market. (a) Within 180 days of the date of this order,
the Secretary of Transportation, in consultation with
the Secretary of Energy, shall submit a report to the
President, through the Assistant to the President for
Economic Policy, regarding the economic and other
effects caused by the inability to transport sufficient
quantities of natural gas and other domestic energy
resources to the States in New England and, as the
Secretary of Transportation deems appropriate, to
States in other regions of the Nation. This report
shall assess whether, and to what extent, State, local,
tribal, or territorial actions have contributed to such
effects.

    (b) Within 180 days of the date of this order, the
Secretary of Energy, in consultation with the Secretary
of Transportation, shall submit a report to the
President, through the Assistant to the President for
Economic Policy, regarding the economic and other
effects caused by limitations on the export of coal,
oil, natural gas, and other domestic energy resources
through the west coast of the United States. This
report shall assess whether, and to what extent, State,
local, tribal, or territorial actions have contributed
to such effects.

Sec. 8. Report on Intergovernmental Assistance. State
and local governments play a vital role in supporting
energy infrastructure development through various
transportation, housing, and workforce initiatives, and
through other policies and expenditures. The Federal
Government is, in many cases, well positioned to
provide intergovernmental assistance to State and local
governments. To achieve the policies set forth in
section 2 of this order, the heads of agencies shall
review existing authorities related to the
transportation and development of domestically produced
energy resources and, within 30 days of the date of
this order, report to the Director of the Office of
Management and Budget and the Assistant to the
President for Economic Policy on how those authorities
can be most efficiently and effectively used to advance
the policies set forth in this order.

Sec. 9. Report on Economic Growth of the Appalachian
Region. Within 180 days of the date of this order, the
Secretary of Energy, in consultation with the heads of
other agencies, as appropriate, shall submit a report
to the President, through the Assistant to the
President for Economic Policy, describing
opportunities, through the Federal Government or
otherwise, to promote economic growth of the
Appalachian region, including growth of petrochemical
and other industries. This report also shall assess
methods for diversifying the Appalachian economy and
promoting workforce development.

Sec. 10. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or
the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.

    (b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
    (c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.

    (Presidential Sig.)

THE WHITE HOUSE,

    April 10, 2019.