Biden faces pressure to waive restriction as ship carrying diesel idles off Puerto Rico coast

The Washington Post / Toluse Olorunnipa, Jeff Stein

14:30 JST, September 27, 2022

President Joe Biden faced growing pressure Monday to grant a federal waiver and allow a BP ship loaded with diesel fuel to access a port in Puerto Rico, where hundreds of thousands of hurricane-ravaged Americans remain without power.

Because the ship is not U.S.-owned, it has been idling off the island’s coast, awaiting a decision by the Biden administration on waiving the Jones Act, a century-old law backed by labor unions and key to the president’s “Made in America” agenda.

Despite mounting calls from the governor of Puerto Rico, local activists and members of Congress, the Biden administration did not grant the waiver required for the ship to dock Monday, raising concerns that the ship could soon leave the power-starved island behind.

White House officials said the Biden administration did not have the authority to simply suspend the Jones Act in Puerto Rico, citing a law passed by Congress in 2020 to crack down on broad waivers. Local officials said Biden had the power to issue one-time waivers that could still provide much-needed, temporary relief, but an administration official said that any exception would require careful consideration to ensure it is legal.

The debate highlights the challenge Biden faces as he balances competing appeals from two constituencies he has pledged to champion as president: labor unions and the residents of Puerto Rico.

As the labor movement defends the federal shipping restrictions and denounces calls to give foreign shippers special access to Puerto Rico, local officials and activists have long decried regulations that increase costs and make it more difficult to deliver essential goods to the island.

The Jones Act, part of a World War I-era shipping law, requires that goods shipped between points in the United States be carried on U.S.-flagged ships built and mostly owned by Americans. Under the act, which was intended to support a U.S. shipping industry for national defense purposes, territories such as Puerto Rico and far-flung states such as Hawaii can face fewer options for shipping goods.

As Puerto Rico continued to suffer from power outages and food shortages in the aftermath of Hurricane Fiona, a wide range of officials began to call on the federal government to intervene by waiving the Jones Act. The push came to a head Monday when Gov. Pedro Pierluisi announced that he had asked for federal relief in order for the offshore vessel to dock.

“I have requested the personal intervention of the Secretary of the Department of Homeland Security so that a ship contracted by a private supplier, loaded with diesel and located near Puerto Rico, can unload the fuel for the benefit of our people,” Pierluisi said Monday in a tweet.

Carmen Feliciano, executive director of the Puerto Rico Federal Affairs Administration, said that Pierluisi favored a temporary Jones Act exemption to facilitate the shipment of fuel to the island.

Officials also pressed their case at the White House, where four Puerto Rican lawmakers met on Monday with the administration’s liaison for Puerto Rican affairs, as well as other administration officials.

The Puerto Rican officials – three from the state’s House, one from its state Senate – asked for the administration to grant the Jones Act waiver and to bypass immigration restrictions to the island to allow high-skilled workers, said Tatito Hernández, the speaker of the island’s House.

Eight members of Congress, including New York Democrats Nydia Velázquez and Alexandria Ocasio-Cortez, wrote an open letter to Homeland Security Secretary Alejandro Mayorkas last week requesting the waiver. After news of the idling ship – first reported by television station Las Noticias T11 – began to circulate online Monday, Sens. Mike Lee (R-Utah) and Marco Rubio (R-Fla.) added their voices to the chorus of officials calling for the federal government to grant the reprieve.

“@WhiteHouse must immediately grant this Jones Act waiver and provide much-needed relief to the people of Puerto Rico,” Lee wrote on Twitter.

A Biden administration official, speaking on the condition of anonymity to discuss internal deliberations, said that any waivers of the act would have to go through a deliberative interagency process to determine legality. The kinds of broad waivers requested by some members of Congress would not be legally viable, the official said.

For one-off requests like the one sought for the BP ship, the Department of Homeland Security aims to complete the review process and provide a response within two days, the official said.

Waiver requests must show that the items being shipped are necessary for the national defense and cannot be otherwise obtained by U.S.-flagged vessels, officials said.

Labor unions, which have been among Biden’s strongest supporters, have opposed efforts to weaken or waive the Jones Act, including after natural disasters.

The American Maritime Partnership – a coalition that represents operators of U.S.-flagged vessels and unions covered by the Jones Act – wrote a letter to Mayorkas on Friday explaining why the Jones Act should not be waived in the aftermath of Hurricane Fiona.

The group said that domestic vessels were ready and available to support the recovery effort in Puerto Rico, with more than 2,000 containers positioned in the port of San Juan to provide supplies before the storm. The group’s president, Ku’uhaku Park, said that U.S.-flagged ships are providing Puerto Rico with essential goods for its recovery, adding that waiving the Jones Act would benefit foreign shippers rather than Puerto Ricans.

“There is no indication that American shipping capacity is insufficient to meet demand, and, therefore, no justification for a waiver of the Jones Act,” he said.

For his part, Biden has repeatedly voiced his support for the act, often winning the praise of unions for speaking out in favor of a law that some Democrats and Republicans have called antiquated.

Five days after his inauguration, Biden signed an executive order to promote “Made in America” policies, citing the Jones Act as one such law. Under Biden’s executive order, waivers of the Jones Act must be reviewed by the White House’s “Made in America” office.

In a “National Maritime Day” proclamation earlier this year, Biden cited his “unwavering support” for the Jones Act and praised the law for supporting hundreds of thousands of jobs. Earlier this year, he won praise from unions for rejecting calls to suspend the act in response to rising gas prices and Russia’s invasion of Ukraine.

Still, Biden has previously suspended the Jones Act as president, including after a cyberattack on the Colonial Pipeline that led to gas shortages last year.

The White House pointed to other actions it has taken to support recovery efforts in Puerto Rico, where Fiona, which came ashore as a Category 1 hurricane and strengthened later, has devastated communities still struggling to rebuild after Hurricane Maria in 2017.

Biden approved a major disaster declaration for much of the island last week, and later directed his government to cover all of the costs for debris removal, search and rescue, power and water restoration, and shelter and food for one month. There are more than 1,000 federal officials on the island helping to restore power and providing other support, a White House official said.

Biden has repeatedly said he would bring the full force of the federal government to help Puerto Rico rebound. His actions are being closely watched by Puerto Ricans, particularly after President Donald Trump received poor marks from locals for his handling of Hurricane Maria. Trump angered residents by feuding publicly with local politicians, denigrating the island as corrupt and tossing paper towels at storm-ravaged Puerto Ricans during a visit in 2017.

Trump, however, did provide a temporary waiver of the Jones Act for the island in 2017, after facing increasing pressure and criticism of his stewardship of the storm.

By contrast, Biden has sought to showcase a more serious and collaborative approach, saying that he would provide the island with whatever it needed to recover.

“I promise you, it is a high priority,” he told supporters last week, according to a video captured by “The View” co-host Ana Navarro and posted on social media. “And from day one I was on the phone with the governor . . . Whatever he wants, we’re giving him everything he’s asked for and more.”

But more than a week after Fiona touched down, roughly 80 percent of the island’s water and sewer plants are without electricity, meaning they have to rely on their diesel-powered backup generators. That creates the immediate need for the fuel. Hernández, the House speaker, stressed that power outages on the island were responsible for more deaths following Hurricane Maria in 2017 than the storm itself.

“We have a ship full of diesel in the south waiting to enter the island. It’s right there, waiting for us – if they give us the waiver we’ll import it right away,” Hernández said. “A lot of people need oxygen, a lot of people need water, a lot of people need help . . . It’s really scary.”

As of Sunday, blackouts were still affecting key parts of the island – 95 percent of residents in Ponce; 88 percent of those in Mayaguez; and 84 percent of those in Arecibo, were suffering from power outages, according to information provided by the speaker’s office.

Against that backdrop, local officials called on the Biden administration to take additional action to provide relief. The storm has exposed long-standing concerns about the way the U.S. territory is treated under federal law.

Ramón Luis Nieves, who served in Puerto Rico’s state Senate and focuses on the island’s energy policy, said that the Jones Act also prevents Puerto Rico from buying liquefied natural gas produced by American companies.

“For years the people of Puerto Rico and its legislatures have demanded the U.S. exempt Puerto Rico from the Jones Act. It makes no strategic sense for the U.S.,” Nieves said, criticizing the “unholy alliance” between the U.S. shipping industry and the unions.

Federico de Jesús, a senior adviser for the Power 4 Puerto Rico coalition, said the Jones Act costs consumers on the island more than $1.5 billion each year.

“The Biden administration can and should issue a Jones Act waiver TODAY for the BP ship unable to dock in Puerto Rico to provide diesel for power plants giving power to hospitals and other critical infrastructure,” he said.