Presidential Permitting for Pipelines: Constitutionality and Reviewability

Abstract

Federal oversight of cross-border pipelines occurs during the presidential permitting process. Pursuant to Executive Order 13337, the Department of State is authorized to review applications and grant permits to projects that “serve the national interest.” Scholars and litigants have questioned the constitutionality of this process and reviewability under the Administrative Procedure Act (“APA”). This Note argues that the permitting process is constitutional and derives legitimacy from both the executive powers explicitly enumerated in the Constitution as well as an implicit sanction from the legislative branch. Further, this Note argues that APA review is appropriate for at least one component of the process. Specifically, the State Department’s environmental analysis as required by the Department’s own regulations is a “final agency action” subject to judicial review under the APA.