United States: President Trump Rolls Back Climate Change Policies To Support Domestic Energy

Last Updated: April 12 2017
Article by Rob Lawrence and Shani Harmon

On March 28, 2017, President Trump signed an executive order titled "Promoting Energy Independence and Economic Growth" that reverses or materially alters many of the actions that the federal government undertook during the Obama Administration to address climate change. According to the Executive Order, President Trump is mandating these actions to promote development of the nation's natural resources, ensure that electricity is affordable, reduce regulatory burdens on companies and respect the role of states in environmental regulation. The Executive Order requires "particular attention to [the burdens on] oil, natural gas, coal, and nuclear energy."

The Executive Order includes a general review of all agency actions that could burden domestic energy production and requires reviews or repeals of specific federal regulations. The most immediate effects relate to review of projects by federal agencies under the National Environmental Policy Act ("NEPA"), coal leasing on federal lands and climate change initiatives within federal agencies. Longer-term impacts relate to regulation of air emissions from new and existing fossil fuel-fired power plants and regulation of oil and gas development, as well as other programs to be identified that burden domestic energy industries. The range of actions could reduce burdens on renewable energy development as well.

General Requirements

The Executive Order broadly mandates that all federal agencies "review all existing regulations, orders, guidance documents, policies, and any other similar agency actions . . . that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources." By July 26, 2017, agencies must submit a draft report identifying regulations and policies that the agency could "suspend, revise, or rescind" to "alleviate or eliminate aspects of agency actions that burden domestic energy production." By September 24, 2017, agencies are required to finalize their proposed actions and then implement the revocations, modifications or other changes as soon as "practicable" thereafter. The private sector will likely assist agencies in identifying burdens to domestic energy development and recommend suspension, revision or rescission of specific regulations prior to the July 26, 2017, draft due date.

Revocation of Executive Orders, Policies and Reports

President Trump's Executive Order rescinds prior policy statements, executive orders and reports that established climate change objectives, including the following:

  • Agency Planning: Executive Order 13653 of November 1, 2013 (Preparing the United States for the Impacts of Climate Change, which is a general mandate for agencies to integrate impacts of climate change into agency planning).
  • Clean Power Plan: The Presidential Memorandum of June 25, 2013 (Power Sector Carbon Pollution Standards, which led to the Clean Power Plan regulations discussed below).
  • Coal Leasing: Secretary of the Interior Order 3338 dated January 15, 2016, as needed to lift any and all moratoria on federal land coal leasing activities.
  • Social Cost of Carbon: Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis under Executive Order 12866 (February 2010) and related technical updates and addenda.
  • NEPA Review: Council on Environmental Quality guidance titled "Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act [NEPA] Reviews."

Generally speaking, these documents established federal policies governing federal agencies in their regulatory and procurement activities, and all relate to climate change issues. The rescission of these orders, memoranda and reports does not directly affect the private sector, except with respect to coal leases on federal land or projects subject to ongoing or future review under NEPA.

Action on Specific Regulations

President Trump's Executive Order also directs the Environmental Protection Agency and Department of the Interior to "immediately take all steps necessary to review the [following] final rules . . . and, if appropriate . . . publish for notice and comment proposed rules suspending, revising, or rescinding those rules":

  • Power Plants
    • Clean Power Plan for Existing Electric Generating Units. 80 Fed. Reg. 64,661 (October 23, 2015). The Clean Power Plan required fossil fuel-fired electric generating units built prior to June 2014 to reduce their carbon dioxide emissions to 32 percent below 2005 levels by 2030.
    • Carbon Pollution Standards for New, Modified and Reconstructed Electric Generating Units. 80 Fed. Reg. 64,509 (October 23, 2015). This rule set emissions standards for fossil fuel-fired electric generating units newly constructed, modified or reconstructed after June 2014.
  • Oil and Gas Sector
    • Emission Standards for New, Reconstructed and Modified Sources. 81 Fed. Reg. 35824 (June 3, 2016). This rule created performance standards for volatile organic compounds ("VOCs") and methane emissions from oil and gas operations, including technical requirements for completions of wells and leak detection.
    • Hydraulic Fracturing on Federal and Indian Lands. 80 Fed. Reg. 16,128 (March 26, 2015). This rule set standards for hydraulic fracturing of wells on federal and Indian lands, including requirements for validation of well integrity, disclosure of hydraulic fracturing chemicals through FracFocus and storage of recovered waste fluids.
    • General Provisions and Non-Federal Oil and Gas Rights. 81 Fed. Reg. 77,972 (November 4, 2016). This rule set standards for non-federal oil and gas operations in national parks, including geophysical surveys, drilling wells, use of wells for gas and oil production, installation of gas and oil flow lines, plugging and filling wells for abandonment, and site reclamation.
    • Management of Non-Federal Oil and Gas Rights. 81 Fed. Reg. 79,948 (November 14, 2016). This rule set standards for non-federal oil and gas operations in national wildlife refuges (including Alaska).
    • Waste Prevention, Production Subject to Royalties and Resource Conservation. 81 Fed. Reg. 83,008 (November 18, 2016). This rule restricts venting, flaring and leaks during oil and natural gas production activities on onshore federal and Indian land, and imposes royalty payments on leaked gas.

Analysis

The scope of the Executive Order is so broad, and its ultimate effects so undefined, that the primary result of the Executive Order is likely to be regulatory uncertainty for the duration of President Trump's current term, and potentially beyond.

  • Immediate Effects: The Executive Order takes effect immediately with respect to federal agency policies and guidance (not regulations). The prior executive orders, memoranda and policy-oriented reports may be rescinded by the President, and that rescission is essentially not appealable. The Executive Order will change the way federal agencies conduct their operations and, most importantly, their review of projects that require federal agency action subject to review under NEPA. Going forward, NEPA reviews will not be required to include specific references to climate change mandated by the rescinded executive orders and policies. Any proposed rules that are affected by the Executive Order may also be withdrawn or terminated to the extent not mandated by statute or prior agency actions.
  • Effect on Final Regulations: President Trump's Executive Order immediately revokes previous executive orders and presidential memoranda, but does not (and cannot legally) change any regulations that are currently in effect. The Executive Order directs federal agencies to review regulations and commence rulemakings, if appropriate, to rescind or revise existing final regulations. To do this, federal agencies must propose new regulations, provide public notice and a period for public comment, and then finalize the rule. This rulemaking process typically takes at least six months to produce a proposed rule, and may take years for regulations that have significant impacts. Accordingly, the earliest that new regulations would be finalized is likely to be the fourth quarter of 2019. Regulations suspending, rescinding or modifying existing regulations would be subject to the types of challenges available for any new regulation, including the failure to adequately justify the agency action or inconsistency with governing law. Any litigation challenging the final regulations would likely require a year or more to reach resolution. It is therefore possible that the Executive Order's mandates would not be completed by the end of President Trump's first term as president.
  • Effect on Pending Litigation: Most of the regulations that the Executive Order directs the EPA or Interior to revise or withdraw are currently being litigated in federal courts. To address this issue, the Executive Order states that the U.S. attorney general may, "as appropriate," request that a court presiding over a challenge to a final regulation not rule on the legality of the regulation until the Trump Administration decides whether it will withdraw or revise the rule. While courts have the discretion to grant such requests, it is not clear whether such requests would be honored by courts. A more important consideration may be whether the attorney general is able to use this direction to avoid aggressive defense of regulations or to decline to appeal decisions that invalidate targeted regulations. The impact on the various challenges to the Obama-era regulations will not be fully known for many months.
  • Scope: The Executive Order did not cover all relevant policies, orders and regulations related to climate change. For example, the rescission of Executive Order 13653 did not affect Executive Order 13693, which requires agencies to conduct sustainability analyses and implement plans relating to climate change. Notably, the Executive Order does not mandate that the EPA reconsider its finding under the federal Clean Air Act that greenhouse gas emissions cause climate change and, therefore, endanger public health and the environment (known as the "endangerment finding"). The endangerment finding was upheld by the U.S. Court of Appeals for the District of Columbia Circuit, and the U.S. Supreme Court declined to review that lower court decision, which may indicate that the Supreme Court supports the endangerment finding, or may leave room for further challenges. As long as the endangerment finding is in effect, the EPA has an obligation under the federal Clean Air Act to issue regulations addressing greenhouse gas emissions. Therefore, even if the Trump Administration withdraws all the EPA rules addressing greenhouse gases, the Administration could be required by the courts to issue new regulations addressing greenhouse gases in some fashion.
  • State Responses and Private Litigation: Many states have already implemented or have considered implementing state-specific climate change regulations and programs. One foreseeable response to the Executive Order may be for some states to take a larger role in addressing climate change, for example, by passing new restrictions on greenhouse gas emissions and offering new incentives for renewable energy. In addition, private citizens have already sued the federal government for failing to adequately address climate change and more suits could be expected in the future. For example, private citizens may sue federal agencies for failing to consider the impacts of climate change in the NEPA reviews, notwithstanding the withdrawal of the Council on Environmental Quality's guidance directing agencies to do so. The direction of these developments is largely unknown at this point, but the absence of a nationwide federal standard is almost certain to generate increased interest in alternative approaches by states and additional challenges in courts.
  • Effect on Markets: On its face, the Executive Order seems to open up markets for domestic energy production and expand the use of domestic energy sources. This is certainly true with respect to some issues directly affected by the Executive Order, such as the scope of NEPA reviews and the availability of coal leases on federal lands. But that analysis does not account for regulatory uncertainty. Bigger issues, like greenhouse gas limitations on power plants, emissions regulation of oil and gas operations and restrictions on hydraulic fracturing on federal lands, must undergo a lengthy rulemaking process and then will be subject to litigation for which the outcome is not certain. In addition, the regulatory gap that will be created by the federal government's actions may be partly filled by states, which may take different forms in different jurisdictions, or by court decisions that expand climate change considerations in response to specific disputes. The ultimate effect is long-term regulatory uncertainty nationally and in each state that may adversely affect investment in specific energy developments.

Renewable Energy: The initial analysis of the Executive Order suggests that more liberal regulation of the fossil fuel sector will reduce the costs of conventional energy and provide additional cost or competitive pressures on development of renewables. But the Executive Order could benefit renewables, as well, by reducing other regulatory burdens imposed by agencies (such as enforcement of wildlife protection laws applicable to wind energy facilities) or reducing the time required for NEPA review of renewable facilities subject to such review. Other Trump Administration policies, like its proposals for tax reform that could affect tax incentives for renewable energy, could also greatly impact renewable development. Accordingly, it is uncertain whether the Trump Administration's actions will have an overall positive or negative impact on renewable energy development.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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.