Keeping Up with Executive Orders: Energy and Environmental Policy
The first two weeks of the second Trump Administration resulted in a series of Executive Orders that signal big changes in the Executive Branch's approach to energy and environmental policy. These orders mark a significant shift in federal environmental priorities and are likely to have far-reaching effects.
These recent orders reflect a distinct shift in federal energy and environmental policy, with potential implications for both state regulators, and private sector initiatives. However, with few notable exceptions, their ultimate impact is still unclear.
Executive Orders that require formal agency action to achieve their goals are likely to face legal challenges in federal courts, which are empowered to stay the effect of many final agency actions until these lawsuits are resolved. As these developments unfold, this could prevent consistency in the application of new federal regulations and actions to revoke old regulations from state to state.
Stakeholders will need to pay close attention to these developments in order to navigate a quickly evolving legal landscape and assess impacts on their operations and objectives.
Below, we lay out how Executive Orders work and summarize key environmental developments from the past few weeks.
What are Executive Orders?
Executive Orders (EOs) are directives issued by the president instructing federal executive agencies to undertake some activity or restricting them from doing so. No formal procedural process applies to Executive Orders, so the president may issue new orders or withdraw prior orders at will.
Unlike the rules and regulations created by federal agencies, Executive Orders are not subject to the public participation process and do not have independent legal effect themselves. But Executive Orders are often used to clarify or support federal laws, as well as to signal changes in Executive Policy and priorities. Since Executive Orders are based solely on the legal powers already vested in the president and the Executive Branch, they’re also frequently used to push the boundaries of a presidential administration’s authority.
Some of the Executive Orders issued by President Donald J. Trump will have immediate effect. Others will require federal agencies to engage in notice-and-comment rulemaking to carry out their directives. Both types are included in the environmental Executive Orders discussed below.
Key Energy and Environmental EOs
- Withdrawing the United States from the Paris Agreement
President Trump's Putting America First in International Environmental Agreements Executive Order initiates the United States' withdrawal from the Paris Agreement, a move that the Biden Administration previously reversed. This withdrawal calls into question U.S. climate policy and its global role in addressing climate change, and potentially deprioritizes federal efforts to reduce greenhouse gas (GHG) emissions. Since treatymaking falls within the defined scope of federal executive powers, this order takes immediate effect, without needing further rulemaking. Meanwhile, various states, cities, and corporations are adhering to their own GHG reduction targets.
- Deregulating Greenhouse Gases
The Unleashing American Energy Executive Order requires the United States Environmental Protection Agency (EPA) and other agencies to revisit EPA’s 2009 Endangerment Finding with respect to GHGs, which is the basis for EPA’s regulation of GHG emissions under the Clean Air Act. Revisions to this finding could hinder the EPA's ability to regulate emissions from both mobile and stationary sources in the future. The order also suggests that the Trump Administration may seek to challenge state emissions waivers that functionally limit sales of gas-powered cars, such as California’s waiver. Unlike the Paris Agreement withdrawal, this order will require the EPA to engage in administrative rulemaking to carry out its directives.
- Promoting Domestic Energy Production
The Unleashing American Energy Executive Order also encourages development of domestic energy resources, particularly including fossil fuels and critical minerals, by removing procedural requirements for the identification, development, and use of domestic energy resources other than wind and solar. The related National Energy Emergency Executive Order supports expedited permitting processes to speed up energy projects, especially on federal lands and waters.
- Streamlining NEPA and Federal Permitting
The Unleashing American Energy Executive Order also seeks to significantly limit the National Environmental Policy Act (NEPA). It orders the Council on Environmental Quality (CEQ) to revise NEPA guidance, proposes rescinding the NEPA regulations, and simplifying and expediting the federal permitting process. The Order directs federal agencies to eliminate “all delays” in permitting, including by use of general permits and permits by rule—authorizations that allow certain categories of facilities to be constructed and operated on an expedited basis. Since agency permitting authority is generally delegated by Congress and does not fall within the scope of executive branch powers, these agencies will need to resort to administrative rulemaking to accomplish the order’s directives.
Nevertheless, commentators expect that this will eventually result in new guidance and regulations that remove consideration of climate change, indirect and cumulative environmental effects, and environmental justice concerns from the impact assessment.
The related Delivering Emergency Price Relief for American Families and Defeating the Cost-of-Living Crisis Executive Order commands agencies to eliminate “harmful, coercive climate policies” that increase the costs of food and fuel, a largely undefined goal that agencies will also likely need to accomplish through administrative rulemaking.
- Restricting Wind Energy
Unlike other Executive Orders that seek to streamline energy projects, this Order has immediate effect and significant impact, establishing new barriers for the offshore wind industry by placing a moratorium on wind energy leasing on the Outer Continental Shelf – the coastal waters surrounding the United States—pending a comprehensive review of the federal leasing and permitting process. Mirroring the pre-Trump Administration’s NEPA process, the Offshore Wind Leasing and Wind Projects Executive Order requires this review to include an assessment of environmental and economic impacts from offshore wind projects.
- Pausing Federal Funding Disbursements
The Unleashing American Energy Executive Order also pauses federal agencies’ distribution of funds appropriated through the Inflation Reduction Act and Infrastructure Investment and Jobs Act, requiring the agencies to review their financial disbursement processes to ensure new policy alignment. Although the White House rescinded a memo from the Office of Management and Budget authorizing the freeze of federal grants and loans after a federal judge granted a temporary injunction to stop its effect, the Trump Administration maintains its stance on federal spending. Future spending freezes are anticipated to affect clean energy, energy efficiency, and environmental justice programs and projects nationwide that rely on federal funding.
- Rolling Back Environmental Justice Initiatives
The Ending Illegal Discrimination and Restoring Merit-Based Opportunity and Ending Radical and Wasteful Government DEI Programs and Preferencing Executive Orders revoke previous mandates requiring federal agencies to consider the impacts of their regulations on environmental justice and disproportionately impacted communities. These actions have immediate and substantial effect.
- Restricting the Federal Workforce
The Restoring Accountability to Policy-Influencing Positions within the Federal Workforce Executive Order and the Hiring Freeze Executive Order remove certain civil service protections for federal employees and implement a general federal hiring freeze. These measures take effect immediately and will impact the EPA's workforce, likely curtailing rulemaking and enforcement activities due to lack of manpower.
Please contact Sophie D. Gray, David J. Topping or any member of the Phelps Environmental team if you have questions or need advice or guidance.
