On Wednesday, April 9, 2025, the Trump Administration (the Administration) issued two Executive Orders (EOs) and a Memorandum aimed at reducing regulatory burdens, each with implications for the energy industry. This summary of the two EOs and Memorandum focuses on those portions of each that will impact FERC-regulated public utilities and pipelines from a commercial and regulatory perspective.
Zero-Based Regulatory Budgeting to Unleash American Energy (Executive Order)
The asserted purpose of the Zero-Based Regulatory Budgeting to Unleash American Energy EO is to rescind "outdated regulations," which the EO states has imposed severe costs on energy production and innovation. This EO mandates that specific federal agencies incorporate sunset provisions into their regulations "governing energy production" under a set of specific statutes, to the extent permitted by law. It calls out FERC and all regulations the agency has issued under the Federal Power Act (FPA), Natural Gas Act (NGA) and the Powerplant and Industrial Fuel Use Act. The EO does not define "energy production," but states that it does not apply to regulatory permitting regimes authorized by statute (e.g., Section 7 of the NGA), though none are expressly stated.
Agencies must issue a sunset rule by September 30, 2025, adding a "Conditional Sunset Date" to each covered regulation of one year after the effective date of the sunset rule (i.e., the Conditional Sunset Date would be September 30, 2026). The sunset provision must also provide that the agency will offer the public an opportunity to comment on the costs and benefits of each regulation, such as through a request for information, prior to a rule's expiration, such that a determination can be made whether to extend it. An extension may be granted for no more than five years.
Unless extended, agencies will treat covered regulations as ceasing to be effective on the Conditional Sunset Date and must remove such regulation from the Code of Federal Regulations. In addition to only requiring sunset provisions to the extent permitted by law, the EO also states that any such provisions must be "consistent with applicable law." Agencies may interpret this language as providing them with broad discretion to determine which regulations require sunset provisions under the EO.
Furthermore, any new regulations must include a Conditional Sunset Date within five years, and amendments do not reset this date. Agency heads must coordinate with their DOGE Team Leads and the Office of Management and Budget (OMB) to implement this EO. The OMB Director may exempt a new regulation or amendment if he determines that such regulation or amendment has a "net deregulatory effect."
The EO does not address how agencies can comply with the notice-and-comment rulemaking provisions of the Administrative Procedure Act (APA) and achieve compliance with the EO by September 30, 2025. In remarks at his April 17, 2025 press conference, FERC Chair Chris Christie indicated that the inclusion of any sunset dates in regulations would have to be done in accordance with the law, i.e., require notice-and-comment rulemaking under the APA. He indicated that although there are regulations that he would like to sunset, such as those permitting transmission incentive ratemaking treatment (which he referred to as "FERC candy"), doing so without any basis would be quickly overturned by a court. While the sunsetting of any of FERC's regulations covered by the EO could have dire consequences, particularly the sunsetting of FERC's NGA Section 7 regulations for interstate natural gas pipeline permitting if so covered, Chair Christie's remarks suggest that chances of FERC attempting to adopt any such sunsetting provisions in the near future without opportunity for stakeholder comment are currently low.
Reducing Anti-Competitive Regulatory Barriers (Executive Order)
The Reducing Anti-Competitive Barriers EO mandates that executive agency heads, in consultation with the Chairman of the Federal Trade Commission (FTC Chair) and the Attorney General, conduct a comprehensive review of all federal regulations to identify those that create monopolies, limit competition, or otherwise distort the free market.
Within 70 days (June 18, 2025), agencies must report their findings and recommendations for rescission or modification of regulations deemed anti-competitive to the FTC Chair and the Attorney General. For regulations inherently designed to be anti-competitive, agency heads must justify their continued existence if they do not propose rescission or modification. Agencies must prioritize rules that meet the definition of "significant regulatory action" in EO 12866 (which includes a wide array of actions when applied to agencies such as FERC that regulate large industries).
The criteria for identifying anti-competitive regulations include those that:
- Create monopolies (de facto or de jure).
- Create barriers to new market participants.
- Limit competition.
- Unduly limit competition through licensure or accreditation requirements.
- Burden the agency's procurement processes.
- Impose anti-competitive restraints on the free market.
Within 90 days of the date the agencies will provide their reports, the FTC Chair, in consultation with the Attorney General and other relevant officials, will compile a consolidated list of anti-competitive regulations and submit it to OMB. The FTC Chair has discretion to add regulations not on an agency list that meet the stated criteria. Then, the OMB Director shall consult with the FTC Chair, the Attorney General, the Assistant to the President for Economic Policy, and the relevant agency heads to decide whether to incorporate the proposed rescissions or modifications into the Unified Regulatory Agenda developed pursuant to EO 14219. Under this EO, the FTC Chair also issued a request for public comment to identify anti-competitive regulations. The public will have 40 days to submit comments at Regulations.gov, no later than May 27, 2025.
This effort will be undertaken in conjunction with the recent formation of an Anticompetitive Regulations Task Force by the Department of Justice's Antitrust Division. According to its webpage, the Task Force advocates for the elimination of anticompetitive state and federal laws and regulations that undermine free market competition and harm consumers, workers, and businesses. The Task Force has also invited public comment about laws and regulations that make it more difficult for businesses to compete effectively, especially in the following markets: Housing; Transportation; Food and Agriculture; Healthcare; and Energy. The public can submit comments to the Task Force by May 26, 2025, at www.Regulations.gov.
The Task Force's press release highlighted laws or regulations that protect "incumbent electric providers from competition or disruptive innovation" as being of interest. The Reducing Anti-Competitive Barriers EO, particularly coupled with actions by the Task Force, may result in campaigns to repeal the federal and state rights-of-first-refusal (ROFR) at FERC and the state level. Public commenters may argue, and members of the Administration may agree, that repeal of the federal ROFR for in-kind replacement transmission facilities adopted by FERC in Order No. 1920, for example, falls squarely within the confines of the Reducing Anti-Competitive Barriers EO. Thus, it is possible that rescission of the ROFR is included in the Administration's Unified Regulatory Agenda.
Memorandum for the Heads of Executive Departments and Agencies - Directing the Repeal of Unlawful Regulations
This Memorandum reinforces previous EO 14219, issued on February 19, 2025, that directed the heads of executive departments and agencies to identify certain types of regulations for repeal and report to the Administrator of the Office of Information and Regulatory Affairs (OIRA) within 60 days (Sunday, April 20, 2025). Specifically, EO 14219 targeted: 1) unconstitutional regulations; 2) regulations that are based on unlawful delegations; 3) regulations based on anything other than the best reading of the underlying statute; 4) regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority; 5) regulations that impose costs upon private parties that are not outweighed by public benefits; 6) regulations that harm the national interest by impeding various Administration objectives; and 7) regulations that impose undue burdens on small businesses.
According to the Memorandum, in conducting their EO14219 review-and-repeal process, agencies must prioritize those regulations conflicting with the following Supreme Court decisions:
- Loper Bright Enterprises v. Raimondo (2024) – overturning the Chevron deference;
- West Virginia v. EPA (2022) – limiting EPA's authority to regulate greenhouse gas emissions from power plants embracing the major question doctrine;
- SEC v. Jarkesy (2024) – restricting the SEC's use of administrative law judges to adjudicate enforcement actions;
- Michigan v. EPA (2015) – requiring cost considerations be part of the regulatory process under the Clean Air Act;
- Sackett v. EPA (2023) – narrowing the scope of federal regulatory power over private land, based on narrowing the definition of wetlands;
- Ohio v. EPA (2024) – limiting EPA's authority to impose stringent air quality standards due to a lack of a reasoned response;
- Cedar Point Nursery v. Hassid (2021) – striking down a regulation allowing union organizers to enter agricultural employers' property to speak to workers because it constituted a per se taking under the Fifth Amendment;
- Students for Fair Admissions v. Harvard (2023) – ending affirmative action at colleges based on a violation of the Equal Protection Clause of the Fourteenth Amendment;
- Carson v. Makin (2022) – holding that states cannot exclude religious schools from public benefits solely based on their religious status in violation of the Free Exercise Clause of the First Amendment to the United States Constitution; and
- Roman Cath. Diocese of Brooklyn v. Cuomo (2020) – holding that restrictions on religious gatherings during the COVID-19 pandemic violated the Free Exercise Clause of the First Amendment to the United States Constitution.
Under this review-and repeal process, as to repeals of facially-unlawful regulations, agencies can bypass the standard notice-and-comment rulemaking process, if consistent with the "good cause" exception in the APA (i.e., when notice-and-comment rulemaking is impracticable, unnecessary, or against the public interest). Agencies must provide a brief statement justifying the use of the "good cause" exception for each repeal performed without a rulemaking. Additionally, within 30 days after the review period ends (May 20, 2025), agencies must submit a one-page summary to the Office of Information and Regulatory Affairs for any regulation initially identified as falling within one of the categories specified in EO 14219, but which had not been targeted for repeal, explaining the decision.
It is unclear what list of regulations FERC may have provided to the Administrator of OIRA by EO 14219's 60-day deadline, as this list is not publicly available. Importantly, FERC's regulations interpreting various statutes appear to be fair game. For example, FERC's interpretation of the 80-MW size limit on small power production facilities under the Public Utilities Regulatory Policy Act, adopted via regulation, is currently pending before an appeals court following Loper Bright. Under the EO, FERC could simply re-interpret or clarify the regulation without awaiting the court's review.
As with the Reducing Anti-Competitive Barriers EO, this EO may be particularly pertinent to regulations implementing FERC's recent regional transmission planning reform. While concurring in Order No. 1920-A, FERC Chair Christie issued a dissent in Order No. 1920, stating that the order was "[a]n essential component in a comprehensive plan by the current presidential administration to push... 'green policies' designed to prefer and promote the wind and solar generation it favors while simultaneously forcing the shutdown of the fossil fuel generation it disfavors."
Chair Christie has also been an opponent of Order No. 2222, which amended FERC's regulations to require regional grid operators to establish rules accommodating the participation of distributed energy resources in wholesale electric markets. He has stated that consumers for years to come will almost surely pay billions of dollars for grid expenditures by utilities that are likely to be rate-based in the name of "Order 2222 compliance." Thus, it is also possible that regulations implementing Order No. 222 would be given a hard look in a FERC review-and-repeal process.
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.
