On March 28, 2017, President Trump signed Executive Order 13783, titled "Promoting Energy Independence and Economic Growth" ("Executive Order"). This article presents answers to frequently asked questions regarding the Executive Order.
What Does the Executive Order Do?
Primarily, the Executive Order establishes the Trump Administration's policies and positions with regard to the nation's energy sector. These policies are defined in Section 1 of the Executive Order to include the following:
- Promoting clean and safe development of energy resources;
- Avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation;
- Ensuring that electricity is affordable, reliable, safe, secure, and clean;
- Ensuring that electricity can be produced from coal, natural gas, nuclear material, flowing water, and other domestic sources, including renewable sources;
- Existing regulations should not unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law;
- All agencies should take appropriate actions (to the extent permitted by law) to promote clean air and clean water for the American people;
- All agencies should respect the proper roles of Congress and the states concerning energy matters; and
- Environmental regulations should be necessary and appropriate, of greater benefit than cost (when permissible), achieve environmental improvements for the American people, and be developed through transparent processes that employ the best available peer-reviewed science and economics
Does the Executive Order Repeal the Clean Power Plan?
No. The Executive Order does, however, revoke and rescind several executive orders and other presidential documents issued by the Obama Administration relating to climate change regulation. See Sec. 3 and 5. For example, federal agencies will no longer consider the so-called "social cost of carbon" when promulgating climate change regulations. The social cost of carbon and some of the other withdrawn White House documents were relied upon when the Environmental Protection Agency ("EPA") promulgated the rule (aimed at reducing carbon dioxide emissions from existing power plants) that is known as the "Clean Power Plan." The Executive Order directs agency heads to identify actions "related to or arising from" the withdrawn Presidential papers and to, "as soon as practicable, suspend revise, or rescind" such actions in a manner that is consistent with the Trump Administration's energy policy, as discussed above. See Sec. 3(d). The Executive Order specifically identifies the Clean Power Plan as a rule that must be reconsidered as soon as practicable. See Sec. 4.
What Other Rules are Affected by the Executive Order?
In addition to the Clean Power Plan, the Executive Order directs the Secretary of the Interior and EPA to consider amending or withdrawing various rules applicable to coal mining and oil and gas development. See Sec. 6 and 7. Beyond those rules (and agencies) specifically identified, the Executive Order requirements apply to all existing federal regulations, orders, guidance documents, policies, and any other similar agency actions that potentially burden the development or use of domestically produced energy sources. See Sec. 2(a). Examples of existing agency actions that may be affected by the Executive Order are included in Table 1. Follow this link to view the table.
What Happens Next?
By September 2017, federal agencies such as EPA must finalize reports outlining how they intended to comply with the Executive Order. See Sec. 2(c)-(e). To the extent agencies plan to comply by revoking or amending existing regulations, most of those actions will be subject to the Administrative Procedure Act, including notice and comment procedures. High-profile regulatory changes are likely to be challenged in court, which could delay effective dates. Reviewing courts might overturn an agency's decision to revise or revoke a rule as a result of the Executive Order if the change is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); see alsoFCC v. Fox TV Stations, Inc., 556 U.S. 502 (2009).
An agency may be able to comply with the Executive Order by voiding or revising certain guidance documents and policies, actions that may not be subject to the same administrative process or judicial review standards as a rulemaking. In those cases, policy changes could be implemented earlier.
Where changes prompted by the Executive Order affect pending litigation, President Trump directed agencies to coordinate with the Attorney General so that the Department of Justice may seek a stay or other appropriate relief sufficient to allow the necessary administrative processes to move forward. See Sec. 4(d), 7(c). For example, EPA recently asked the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") to hold the Clean Power Plan case in abeyance while the agency reconsiders the rule. See Case No. 15-1363, Doc. No. 1668274 (filed 03/28/2017). Although the court heard oral argument for that case in September of 2016, a decision has not yet been rendered. On April 28, 2017, the D.C. Circuit granted EPA's request in part—ordering that the case be held in abeyance for 60 days. See Case No. 15-1363, Doc. No. 1673071 (filed 04/28/2017). The court also requested supplemental briefing as to whether the rule should be remanded to EPA, and it is possible that the D.C. Circuit will allow the agency to move forward with a new version of the Clean Power Plan before ever issuing a ruling regarding the original rule.
What Should My Company/Facility Be Considering?
Energy sector businesses should begin by identifying existing federal regulations or policies that are unduly burdensome. For purposes of the Executive Order, the term "burden" means to "unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources." See Sec. 2(b). The regulated community should consider onerous requirements beyond recent, controversial, or familiar EPA regulations, such as the Clean Power Plan. For example, there may be existing obligations imposed by the Department of Energy, the Federal Energy Regulatory Commission, the Fish and Wildlife Service, or the Mine, Safety and Health Administration, which are also subject to the Executive Order because they unreasonably encumber energy development.
Several of the standards outlined in the Executive Order, such as "unnecessarily constrain economic growth," are not defined and are open to interpretation and input from the public. Energy-related businesses can (and should) begin developing a record demonstrating why certain existing rules are overly burdensome or otherwise inconsistent with the White House's declared energy policy. At the same time, evidence showing how desired changes could, for example, ensure that domestically produced energy is affordable, would help facilitate needed revisions. To promote prompt amendments that survive judicial scrutiny, the regulated community should consider proactively providing information to federal agencies regarding the most burdensome regulations and proposed solutions that are consistent with the Trump Administration's energy policy.
The energy industry should also stay apprised of notices and other announcements concerning implementation of this and similar White House directives. For instance, EPA recently requested public comment regarding regulations that may be appropriate for repeal, replacement, or modification pursuant to a regulatory reform executive order. Although this particular comment solicitation is not specific to regulations affecting the energy production, it is an important opportunity to begin creating a record that will support future actions consistent with the Executive Order.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
