United States: Trump Order Ushers in the Future of US Energy and Environmental Regulation

On March 28, President Trump launched a sweeping overhaul of US energy and environmental policy. The presidential Executive Order on Promoting Energy Independence and Economic Growth (Order) repeals several policies of the Obama Administration and represents a dramatic shift in direction for the development of energy and other infrastructure projects in the United States. Some immediate changes include:

  • National Environmental Policy Act (NEPA) Reviews. The Order repeals the Council on Environmental Quality (CEQ) final guidance requiring consideration of climate change as part of agency NEPA reviews
  • Mitigation. The Order repeals the presidential memorandum on mitigating the impacts of development and encouraging private investment in conservation to achieve a "net benefit" or at a minimum a "no-net loss" for natural resources.
  • Social Cost of Carbon. The Order replaces the estimate of the potential economic harm from climate change—known as the "Social Cost of Carbon"—developed by the Interagency Working Group on Social Cost of Greenhouse Gases with an older estimate developed in 2003, and also disbands the working group.
  • Coal Leasing. The Order directs the Secretary of the Interior to repeal the moratorium on the sale of new coal leases on federal land and to reevaluate the need for a programmatic environmental analysis of the federal coal leasing program.

The Order potentially implicates other federal policies by directing agencies to review regulations and "suspend, revise, or rescind" those determined to "unduly burden" domestic energy development. Most notably, the Order directs the Environmental Protection Agency (EPA) Administrator to review and, if appropriate, take lawful action to amend or revoke the Clean Power Plan and the New Source Performance Standards for greenhouse gas emissions from power plants, as well as any associated guidance or other agency actions.

The Order also requires agencies to reevaluate key regulations related to oil and gas development, including the Department of the Interior's recently finalized rules for hydraulic fracturing on federal land, methane emissions from oil and gas facilities, oil and gas development in national parks and wildlife refuges, and oil and gas royalties. The Order directs Interior to review the final rules and any guidance issued pursuant to them, and, if appropriate, to suspend, revise or rescind them. Any effort to amend or repeal the formal regulations themselves will require the same notice-and-comment process by which the rules were promulgated in the first place.

The Order also launches a 180-day government-wide review of "all agency actions" that "potentially burden" domestic energy development, with a focus on oil, natural gas, coal and nuclear energy. Agencies have 45 days to prepare a plan for completing this review, followed by a draft final report detailing specific agency actions within 120 days and a final report within 180 days of the Order. The director of the Office of Management and Budget will coordinate this effort in consultation with the assistant to the president for economic policy.

Because so much of the practical effect of the Order is to launch this series of reviews and reconsiderations of Obama-era policies, the specific changes to existing policy will play out over the coming months (and years). While there will be opportunities for public participation of interested stakeholders where notice-and-comment rulemaking is required to alter an existing regulation, the agencies will have broad discretion to alter their less formal policies without significant stakeholder input.

For now, the Trump Administration is focused on the previous administration's efforts to increase the regulation of domestic energy production and generation. The Order does not address other elements of the Obama Administration's environmental initiatives, including the presidential directive for sustainable planning, which requires federal agencies to reduce their own greenhouse gas emissions and to engage in sustainable acquisition and procurement by favoring energy- and water-efficient products and "environmentally preferred" products that meet certain criteria established by EPA. Agencies and government contractors have already taken significant steps to implement the directive.

Interior Initiates Regulatory Overhaul

Interior Secretary Zinke has already taken steps to implement Tuesday's Order. The day after the Order was released, he signed Secretary Order 3348, which cancels the ongoing review, initiated by the previous administration, to consider reforms to the federal coal leasing program and lifts the moratorium on new federal coal leasing that had been put in place during that review. In place of the Obama-era program review, Secretary Zinke reestablished the dormant Royalty Policy Committee. The Royalty Policy Committee will "advise on current and emerging issues related to the determination of fair market value, and the collection of revenue from energy and mineral resources," and will include both federal officials and nonfederal members, including representatives of states, Indian tribes, industry, academia and public interest groups.

Secretary Zinke also signed Secretary Order 3349 to begin the process that the Executive Order requires to reverse actions taken by Interior under the previous administration's Executive and Secretarial Orders. Order 3349 calls on Interior bureaus and offices to identify "Department Actions" (i.e., "regulations, orders, guidance documents, policies, instructions, notices, implementing actions, and . . . similar actions") related to climate change and mitigation policies. Order 3349 also calls on the Bureau of Land Management to rescind the "Hydraulic Fracturing on Federal and Indian Lands" rule and identifies other final rules, which the relevant bureau or office will review to determine whether they are "fully consistent with the policy set forth" in the Executive Order. Among those other rules is the "Waste Prevention, Production Subject to Royalties, and Resource Conservation" rule, which regulates methane emissions on federal oil and gas leases.

Legal Road Ahead

The Executive Order and corresponding agency actions are likely to be the beginning of a new series of legal processes, not the end. First, as the Order itself acknowledges, efforts to revise or repeal finally promulgated rules will require notice-and-comment rulemaking and, in many cases, environmental, economic and other related analyses.

Second, these new rulemaking actions are nearly certain to prompt new litigation. Moreover, as long as EPA's 2009 finding that carbon dioxide and other greenhouse gases threaten public health—the so-called endangerment finding—still stands, the agency is obligated to regulate carbon dioxide in some fashion.

Finally, Tuesday's Order and the subsequent agency action it will prompt occur in the context of already pending litigation challenging the same Obama-era reforms that the Order seeks to roll back. For example, the Clean Power Plan has already been challenged and, after having been stayed by the US Supreme Court, is back at the US Court of Appeals for the DC Circuit, where the court is currently assessing its validity. Just hours after the Order was released, the Department of Justice (DOJ) requested that the DC Circuit halt the lawsuits over the Clean Power Plan, noting that President Trump had directed EPA to take "all steps necessary" to review the rule and potentially initiate a new rulemaking. DOJ told the court that prior positions taken by EPA with respect to the rule "do not necessarily reflect its ultimate conclusion." EPA also filed a motion to suspend legal proceedings related to challenges to the New Source Rule. As with the Clean Power Plan, EPA argued that federal agencies have "inherent authority" to reconsider and revise past decisions.

Defenders of the Clean Power Plan, including some state attorneys general, are likely to file a response—perhaps as early as this week—urging the court to let the case move forward and issue an opinion based on arguments presented to the court en banc in September 2016. The DC Circuit now must decide whether to rule, pause or take some other action. There is no deadline by which the court must act, and any decision by the DC Circuit is likely to generate a petition for review by the Supreme Court.


President Trump's Executive Order combines immediate repeal of certain Obama-era actions; the identification of specific regulations that should be reconsidered; and a general call for Interior, EPA and other relevant agencies to scrub their books for any other actions taken under the previous administration that burden domestic energy development, particularly fossil fuel production and use. Among other things, the Order lifts the moratorium on federal coal leasing, rolls back requirements that the NEPA process account for climate change, and likely will result in the repeal of the rules regulating hydraulic fracturing and methane emissions on federal oil and gas leases. The Order is likely to result in numerous legal challenges as agencies take actions to repeal or roll back Obama-era rules while shifting the ground on which ongoing challenges to the existing regulations will be fought. While much of the impact of the Order is still to play out over the coming months and years, President Trump has taken a decisive step regarding regulation of energy development in the country.

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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.