Promoting Cross-border Energy Infrastructure Act

Enumerated powers · passes

Congress has the power to regulate commerce with foreign nations and among the several states under Article I, Section 8, Clause 3. The bill regulates cross-border energy infrastructure, which directly involves foreign commerce and interstate commerce. Additionally, Congress has the power to dispose of and make all needful rules respecting the territory or other property belonging to the United States under Article IV, Section 3, Clause 2, which may apply to border facilities. The bill's delegation of permitting authority to FERC and DOE is within Congress's legislative authority.

Bill of Rights · passes

The bill does not infringe upon any of the first ten amendments. It does not restrict speech, religion, assembly, press, petition, arms, quartering, search and seizure, self-incrimination, due process, takings, fair trial, jury, cruel and unusual punishment, or unenumerated rights. The permitting process is a regulatory measure that does not implicate these rights.

Individual liberty · passes

The bill imposes a permitting requirement on persons seeking to construct or operate cross-border energy infrastructure. This is a reasonable regulation of commercial activity that has significant interstate and international implications. The government has a compelling interest in ensuring the safety, reliability, and environmental compliance of such infrastructure. The burden on individuals is minimal and justified by the need for oversight.

Decentralization · raises concerns · severity: minor

The bill centralizes permitting authority at the federal level, which is appropriate given the interstate and international nature of the infrastructure. However, it fails the decentralization test because it consolidates decision-making at the federal level, whereas states could potentially handle some aspects of permitting. Nevertheless, the federal role is necessary for cross-border facilities, so the failure is minor.

Due process and takings · passes

The bill establishes a clear process for obtaining certificates and sets deadlines for agency action, which provides procedural due process. It does not take property without just compensation; rather, it regulates the construction and operation of new facilities. The requirement for congressional approval before revoking permits provides an additional layer of due process for permit holders.