Biden faces a mounting clamor from Congress as well as Puerto Rican leaders to provide an exemption that would let the BP tanker carrying the fuel access to an island port. The ship cannot do so because of the Jones Act, a shipping law that requires goods shipped between points in the United States be carried on U.S.-flagged ships, in an effort to support U.S. shipping and labor.
The ship, called GH Parks, is flagged to the Marshall Islands and departed from Texas.
Administration officials say they have no legal authority to provide a blanket one-year waiver to the Jones Act, as a group of House Democrats demanded in a letter last week. Instead, White House aides are pushing the Homeland Security and Transportation departments to expedite a review that would allow them to grant a one-time exemption for this particular vessel.
A spokesman for BP said a waiver request had been submitted last week.
Images of the ship idling outside the island circulated on social media this week as Puerto Rico’s governor demanded action and expressed alarm about the impact of the delay on critical facilities damaged by Hurricane Fiona, including wastewater treatment plants, public hospitals and emergency centers. Many of these facilities, lacking electricity in the storm’s aftermath, need fuel for generators that provide an alternate power source.
Island advocates have emphasized that the administration granted a waiver to the Jones Act after a colonial pipeline ransomware attack led to outages in May, saying there is no reason a similar waiver could not be granted in this case.
“It’s a political decision. … This is such an emergency they should be able to find a justification pretty quickly,” said Federico A. de Jesús, a senior adviser for the Power 4 Puerto Rico coalition who served in the Obama administration. “The lawyers can justify it in many ways, as they did for these other two cases. It does not hold water to just blame the bureaucrats.”
To comply with federal law, the DHS secretary must ensure Jones Act waivers meet specific legal criteria before granting the reprieve. First, DHS must determine that waiving the Jones Act is necessary “in the interest of national defense,” though the law does not define the term. Second, the federal government must determine that no available domestic vessel could meet the same need as the foreign vessel requesting the waiver.
When DHS receives a request for a Jones Act waiver, it must consult with the Energy and Defense departments to determine whether the “national defense” requirement can be met, an administration official said. The need to provide fuel for an island where thousands of Americans remain in the dark could be a priority for maintaining order, which could be considered in the interest of national defense, the official said.
DHS must also consult with the maritime administrator in the Transportation Department to ensure no U.S.-owned vessels could make the delivery. In general, such waivers can only last for 10 days or less.
“We have under this administration developed a process by which to try to expedite the decision-making here,” said the administration official, who spoke on the condition of anonymity to discuss internal processes. “But it’s really an interagency process.”
Even if DHS Secretary Alejandro Mayorkas decides to grant the waiver, the White House would still need to sign off as a final step. The administration has said in the past that it would try to process such waivers within two days, but the complexities of a hurricane response could make the review process take longer, the official said.
While the sight of a fuel tanker idling off the coast is infuriating to many on Puerto Rico and in Congress, the administration faces complex political crosscurrents. The American Maritime Partnership — a coalition that represents operators of U.S.-flagged vessels and unions covered by the Jones Act — said Monday that domestic ships were continuing to provide fuel to the island, making a waiver unnecessary.
Officials from the group on Tuesday highlighted a radio interview by the executive director of the Puerto Rico Ports Authority in which he said there is enough diesel fuel on the island. Biden, who in the past has declared “unwavering support” for the Jones Act and pledged to be the most pro-union president in history, has won plaudits from labor leaders for defending the century-old law and the U.S. jobs it supports.
Hurricane Fiona slammed into Puerto Rico on Sept. 18, knocking out power across the U.S. territory and leaving more than 3 million residents in the dark. The Energy Department released an update on Tuesday reporting that a third of Puerto Rico was still experiencing power outages, a number that represents 491,000 customers.
While the department’s Monday update specified that “currently there are no reports of liquid fuel supply shortages on the island,” that line was not included in the update released Tuesday. “As of September 22, long lines have been reported at some retail fuel stations due to high-demand for gasoline and diesel,” the update read.
A DHS spokesman Monday did not provide a timeline for any decision on the waiver. “The Department of Homeland Security will continue to examine individual requests for Jones Act waivers on a case-by-case basis and in consultation with the Maritime Administration, Departments of Defense, and Energy,” the spokesman said.
Rep. Adriano Espaillat (D-N.Y.), who signed the letter demanding the Jones Act waiver, said he is pushing for the administration to act in part because Congress will not be able to do so as it tries to head off a government shutdown.
“Realistically, I don’t think that’s a real possibility this week,” Espaillat said in an interview. “With everything else on the table, it’s a big lift. It requires some action from the administration. Right now, it’s an emergency. … This is a humanitarian matter at this point.”
Other administration allies have also stepped up their criticisms in recent days. Jason Furman, who served as a top economist in the Obama administration, said it “made my blood boil” that the White House would delay the granting of the waiver.
“In the best of times, the Jones Act reduces resilience and raises prices,” Furman said. “At a time like this, it can be especially harmful to the most vulnerable people who are suffering from the aftermath of the hurricane.”
Arelis R. Hernández contributed to this report.