Background
On his first day in office, President Trump signed an executive order (“EO”) declaring a “National Energy Emergency,” the first in U.S. history. This comes off countless campaign promises from the president that the U.S. would increase domestic energy production.
The Executive Order’s Substance
Invoked under the National Emergencies Act, the president ordered agencies to identify and exercise all lawful emergency authorities available to facilitate traditional energy production, including using federal eminent domain power if needed. The president also stated that the administrator of the Environmental Protection Agency and the Secretary of Energy should consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline to meet supply shortfalls. Agencies are to use lawful emergency authorities to accelerate the completion of authorized and appropriated infrastructure, energy, environmental, and natural resources projects to facilitate energy supply, refining, and transportation in the Northeast, West Coast, and Alaska. Agencies were told to identify projects that could require emergency permits from the Clean Water Act and use the emergency Army Corps provisions. The Endangered Species Act Committee, led by the Secretary of the Interior, is to promptly review applications for exemption from the ESA requirements. Finally, the Department of Defense is to assess their ability to acquire and transport energy at home and abroad.
Also of interest, in the EO “energy” is defined as crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals. Wind and solar were not mentioned, exhibiting the administration’s commitment to traditional energy production.
In Practice
President Trump has stated that energy costs have contributed significantly to the increased cost of goods. So, he wants the U.S. to ramp up production to make energy cheaper. This EO signals to industry players that the administration is willing to support energy producers and ease the regulations they have to work within; however, this EO also commands agencies and executive departments to act within the bounds of existing law. Executive orders are not law and cannot order agencies to act contrary to laws.
Also included in this EO are timetables the agencies and department heads must comply with. For example, Section 6 of the EO mandates that permit applications for Endangered Species Act Section 7 exemptions be initially determined within 20 days of submission and decided on within 140 days of the application. To achieve domestic energy production, the administration is going to work swiftly to identify legal authority and review applications for permits and exemptions. Further, within 30 days of the EO and each 30 days thereafter for the duration of the energy emergency, each department and agency must submit status reports of their operations to the director of the Office of Management and Budget, the Secretary of the Army, the director of the National Economic Counsil, and the chairman of the Council on Environmental Quality.
Overall, the EO is signaling domestic energy producers and transporters that the administration is willing to work with them to make energy production easier under lawful emergency authority granted to the administration under the National Emergencies Act.
