On May 18, 2001, the president of the United States issued Executive Order 13212, “Actions To Expedite Energy-Related Projects,” explicitly directing agencies of the government to work together to accelerate the completion of programs that would increase production, transmission or conservation of energy.

Problem solved?

Executive Order 13212 remains in effect, but on a macro level it now takes longer to work through projects than it did in 2001, said Barry Hartman of K&L Gates LLP, an international law firm. He can cite executives who tell him that dealings involving the federal government are “fairly painful” and create “unnecessarily large investment risks because sites can’t be secured.”

So how can presidential orders be of any value if those orders aren’t followed? Because they provide certainty and predictability for the energy sector, said Hartman, who served as the Justice Department’s assistant attorney general for the Environment and Natural Resources Division under President George H.W. Bush.

“That’s what it’s all about for most people that I’ve talked to,” he said at the recent GTL North America conference in Houston, sponsored by Zeus Intelligence, a Hart Energy company. “They just want to know what the government’s planning so they can make their investment decisions and can go to their investors and everybody else and say, ‘OK, we can go forward with this. We have enough certainty.’”

Legislation accomplishes this as well, but the question remains of whether laws or executive orders are the most effective way to get things done when it comes to the federal government.

“It depends on how you look at it,” said Hartman. “It can be very good for you. You can take an executive order and you can mine it—‘The president told you you’re supposed to expedite this.’ Sometimes it helps. It does create opportunities very easily. Very few have ever been invalidated; Congress doesn’t usually override them.

Politically supported ones do give some degree of certainty, some degree of security to investors.”

In energy policy, executive orders typically fall into two areas—project development and direct government action. “Because the government is such a large consumer of energy, it can create a market for these opportunities that makes for a market for the private sector,” he said.

Among these:

• President Richard Nixon created the Environmental Protection Agency.

• President Gerald Ford created the Federal Energy Administration.

• President Ronald Reagan ordered the decontrol of natural gas markets and eased licensing processes for nuclear power plants.

• President George H.W. Bush created a national energy strategy that mentioned greenhouse-gas emissions for the first time, and accelerated new energy technologies through federally funded research.

• President Bill Clinton’s energy strategy shifted the country’s emphasis from coal to renewable sources.

• President George W. Bush ordered increases in renewable energy efficiency and tied energy to national security.

• President Obama has set sustainability standards and greenhouse-gas regulations.

Then again, Hartman countered, executive orders are only nominally binding, are not always followed, and can be overridden by Congress. There is also the possibility that a future administration will rescind an order, or keep it and interpret it differently.

A case in point is Executive Order 13337 of April 30, 2004, in which President George W. Bush builds on his 2001 order to expedite energy projects by specifying the issuance of permits related to facilities involving international boundaries. This is the order that is cited to give the go-ahead for construction of TransCanada Corp.’s (NYSE: TRP, TO: TRP.TO) Keystone XL Pipeline extension.

This same order is invoked by the administration of President Barack Obama to delay approval to build the project. The order gives the secretary of state the option of consulting with local officials before issuing a decision, and Nebraska is currently in a legal battle over whether it is constitutional for its governor to approve major oil pipeline projects.

Justification for executive orders derives from the Constitution, which designates foreign policy and management of the executive branch of the federal government as under the president’s purview. They go back to the administration of President George Washington, and include President Thomas Jefferson’s order to execute the Louisiana Purchase.

“No law was passed,” Hartman said. “[President Jefferson] just signed an executive order and said, ‘we’re going to do this.’”

But there are limits. During the Korean War, President Harry S. Truman signed an executive order to seize the nation’s steel mills to aid in the war effort. He was stopped by the Supreme Court, using this reasoning by Associate Justice Robert H. Jackson: “Any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”

In other words, Hartman said, you can do it if it smells right. The other factor differentiates between the public and private sectors. “The limits are primarily to the extent that they affect domestic private industries,” he said. “That’s where the line is drawn.”

The advantage of a law over an executive order is that it can be enforced. It can also be challenged in the courts, Hartman said, and passage does not automatically ensure funding because the congressional appropriations process is completely separate.

For example, the Nuclear Waste Policy Act, passed in 1982, directs the Department of Energy to build and operate the Yucca Mountain Nuclear Waste Repository in Nevada. More than $29 billion is sitting in the Nuclear Waste Fund to move forward, but Congress has not passed the annual appropriations necessary to access those funds.

Bottom line: Love ’em or hate ’em, executive orders are a fact of life in Washington.

“They exist and presidents use them,” Hartman said. “This president uses them because Congress doesn’t act. They do impact energy policy. They’re ephemeral, but not as ephemeral as they might seem, and they can be used at times to increase certainty.”