United States: WilmerHale ENsights: Obama Legacy, Trump Team Takes Shape

Welcome to the inaugural issue of WilmerHale ENsights. In this and future editions, we will share weekly energy policy analysis on President-elect Donald Trump's transition and the priorities of the new Congress. Our experienced lawyers from our Energy, Environment and Natural Resources Practice will highlight the need-to-know information that will assess your exposure and unlock new potential.

Obama Legacy, Trump Team Takes Shape

Nearly a month into the presidential transition, many questions about President-elect Trump's policies and cabinet remain unanswered, but one thing is clear: the federal oversight of energy, environment, and natural resources will be profoundly different under the Trump Administration. Early cabinet choices in financial services, the economy and international affairs suggest Trump is tracking to the center from his campaign positions. But not so for the energy sector. Likely appointments at the Departments of Interior, Energy, EPA and Agriculture have fundamentally different philosophies than do their Obama administration predecessors on virtually every issue, from energy development to environmental controls to climate change. Key appointments, policy announcements, and congressional hearings over the coming months will shape the new regulatory landscape for energy and natural resource developers.

The Obama Administration Finalizes Legacy Rules

A flurry of rulemaking activity occurred in the days after the presidential election, an apparent final push to codify key policies of the Obama administration. Among these policies were three Department of the Interior rules that consider a landscape-level approach to land use and natural resource management—the Bureau of Land Management's (BLM) new land use planning rule, Planning 2.0; a new BLM rule that establishes a framework for competitive renewable energy leasing on public lands; and an update to the Fish and Wildlife Service mitigation policy. All three policies aim to institutionalize an approach that considers resources across jurisdictional boundaries on a landscape basis to identify the areas best suited for development and those where conservation measures would have the greatest value.

  • BLM Planning 2.0. On Dec. 1, the BLM issued a final rule known as Planning 2.0, the much anticipated update to its land use planning regulations. The rule updates for the first time in 30 years the agency's procedures for developing and amending BLM's resource management plans—the documents that guide BLM's management of public lands in terms of natural resource development, recreation and conservation. It also incorporates the Obama administration's signature landscape-level approach to resource management into BLM's formal planning process.
  • Renewable Energy Leasing Rule. On Sept. 30, BLM issued a final rule establishing a competitive leasing process for solar and wind development on public lands. This rule also codifies a landscape-level approach to project planning, directing developers to designated leasing areas (DLAs) with minimal conflicts and the best energy generation potential. Project developers who site projects within DLAs stand to enjoy a variety of incentives, including financial benefits and a streamlined leasing process. The rule complements and institutionalizes the Obama administration's landmark planning efforts for "smart from the start" renewable energy development on public lands, including the Western Solar Plan, the Desert Renewable Energy Conservation Plan in California and the Restoration Design Energy Project in Arizona.
  • FWS Mitigation Policy. On Nov. 21, the Fish and Wildlife Service (FWS) published an update to its mitigation policy, adopting a landscape-level approach to mitigation of project impacts on fish, wildlife, plants and habitats, and establishing a "net gain... or at a minimum, no net loss" goal. The policy update is consistent with a 2015 Presidential Memorandum calling on agencies to set a "net benefit" goal for mitigation, as well as a 2013 Secretarial Order and subsequent DOI Manual update, establishing a department- wide mitigation strategy to move away from project-by-project or single-resource mitigation and toward a landscape-level approach.

Will the Trump Administration Roll Back Key Reforms?

President-elect Trump's campaign has promised to roll back federal regulations so it is unclear whether recently completed rules will remain in force after January 20. Once he takes office, Mr. Trump will have several mechanisms at his disposal to do away with Obama-era regulations, but each has important limitations that make wholesale regulatory repeal unlikely. Faced with competing interests, the Trump administration is expected to prioritize and focus its efforts on overturning a handful of regulations, such as the EPA's and Army Corps' Waters of the US rule, EPA's rule on methane emissions from new and modified oil and gas facilities, or BLM's venting and flaring rule.

  • Regulation Repeals. President-elect Trump could issue executive orders directing agencies to repeal or revise previously promulgated rules but this would require formal notice and comment for each rule, and the final decision would have to withstand judicial scrutiny in near-certain litigation. For complex regulatory issues, such as the regulation of greenhouse gas emissions, the repeal process could take several years.
  • DOJ Position in Pending Litigations. A Trump-led Department of Justice may be directed not to defend the numerous pending lawsuits against the most controversial Obama-era regulations, such as the Clean Power Plan, the BLM's and EPA's methane rules, and the Army Corps' Waters of the US rule. Even without an active DOJ defense, however, third-party intervenors will almost certainly step in to continue defending such rules.
  • Congressional Overhaul. A third option applies to rules finalized within the last 60 session days before Congress adjourns, which has been estimated to fall at the end of May. For any rule finalized after this date, the Congressional Review Act (CRA) allows Congress to pass, and the President to sign into law, a joint resolution disapproving the rules.

    Congressional Republicans, including Paul Ryan, have repeatedly attempted to use the CRA to overturn some of the Obama administration's rules, but these attempts were largely symbolic because they either failed to generate the necessary two-thirds majority in both houses or were vetoed by President Obama.

    But now, with two Republican-controlled houses and a Republican president intent on stripping away burdensome regulations, the CRA is a viable—though by no means automatic—path to overturning regulations without the typical procedural requirements.

    The CRA does not permit filibusters in the Senate, but House Democrats will be able to filibuster each measure—and while the CRA places limitations on the debate time on the House floor, repealing each target rule through a separate joint resolution is likely to be very time consuming.

    In part to address this issue, both the Senate and the House have introduced bills, S.3483 and H.R. 5982, respectively that would allow Congress to bundle "midnight regulations" and overturn them as part of a single joint resolution. These bills are unlikely to overcome significant Democratic opposition in the current Congress, and President Obama has indicated he would veto them if passed, but they stand a better chance in next year's Republican-controlled legislature.

Significantly, these administrative hurdles apply only to formal rulemakings. President-elect Trump can abolish executive orders, interpretive rules, policy statements and guidance documents, such as the Council on Environmental Quality's guidance for evaluating greenhouse gas emissions as part of NEPA review.

The Future of Energy, Environmental and Natural Resource Policy

The Trump transition team is expected to announce the heads of the Departments of Interior, Energy, and EPA during the week. A number of potential candidates have been floated for the top post at each agency, ranging from governors, to state regulators, to Congressional members, to oil and gas executives, and even two Democratic Senators.

  • Interior. The shortlist for the Interior includes Oklahoma Governor Mary Fallin, Wyoming Representative Cynthia Lummis, Washington Representative Cathy McMorris Rodgers, Former Oklahoma House Speaker T.W. Shannon, former Arizona Governor Jan Brewer, and former Alaska Lieutenant Governor Mead Treadwell. The list of potential Interior nominees also includes a number of top oil and gas executives.
  • EPA. Top EPA candidates include former Oklahoma Attorney General Scott Pruitt, former Texas environmental regulator Kathleen Hartnett White, West Virginia Attorney General Patrick Morrisey, Arkansas Attorney General Leslie Rutledge, and former Bush EPA official Jeff Holmstead.
  • Energy. Former Texas Governor Rick Perry, Wyoming Representative Cynthia Lummis and two Democratic Senators—West Virginia Senator Joe Manchin and North Dakota Senator Heidi Heitkamp—are rumored to be at the top of the list for the next Secretary of Energy. That list also includes senior oil and gas executives like Larry Nichols, former head of Devon Energy Corp.

The Republican-controlled Senate is expected to confirm all Trump appointments, especially in light of a recent rule change requiring only a simple majority vote to confirm cabinet appointments but many of the nominees announced so far will likely face very difficult confirmation hearings. Senate Democrats have already said they would oppose nominees who question the existence of climate change or favor wholesale regulatory reform for the benefit of fossil fuel interests. On Dec. 1, 10 Senators penned a letter criticizing President-elect Trump for selecting cabinet and transition team members with "extensive ties to the fossil fuel industry." The letter also urged Mr. Trump to reevaluate his picks for the EPA, Energy and Interior.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions