Regulatory Developments

What Orders Are in the President’s EO?

What is the major message behind President Trump’s Executive Order (EO), Promoting Energy Independence and Economic Growth? Does it signal that the Obama administration’s so-called “war on coal is over” (Vice President Mike Pence)? Or does it “call into question America’s credibility and our commitment to tackling the greatest environmental challenge of our lifetime” (Senator Tom Carper, ranking member of the Environment and Public Works Committee)? In the coming months and years, we will be hearing a great deal more from adherents of those two opposing views.

Disagreements about the effects of the EO—in terms of environmental protection, economics, jobs, and the U.S. role in international affairs—could not be more pronounced. But there is no disagreement about the objective of the order—no less than reestablishing the prominence of traditional and domestic fossil fuels in powering the American way of life.

Rules on the Chopping Block

Neither should there be any doubt about how the EO seeks to achieve that objective—by methodically eliminating or weakening major federal rules that put heavy constraints on how and where fossil fuels are obtained and how they are combusted. In terms of those regulations, the EO specifically directs the following:

  • Regulatory reviews. The heads of all agencies have 45 days to develop plans to 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. The plans, with recommended actions, must be submitted to the Office of Management and Budget (OMB) and then finalized in 180 days. In consultation with the assistant to the president for Economic Policy, the OMB will be responsible for coordinating the recommended actions. Agency heads must then, as soon as practicable, suspend, revise, or rescind any action that burdens the development of domestic energy resources.
  • Obama documents. The EO revokes the following six energy-/climate-related documents issued by President Obama:
    • EO 13653 of November 1, 2013 (Preparing the United States for the Impacts of Climate Change).
    • Presidential Memorandum of June 25, 2013 (Power Sector Carbon Pollution Standards).
    • Presidential Memorandum of November 3, 2015 (Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment).
    • Presidential Memorandum of September 21, 2016 (Climate Change and National Security).
    • Report of the Executive Office of the President of June 2013 (The President’s Climate Action Plan).
    • Report of the Executive Office of the President of March 2014 (Climate Action Plan Strategy to Reduce Methane Emissions).
  • CEQ guidance. The EO revokes the Council on Environmental Quality’s (CEQ) Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (Noticed in August 5, 2016, FR).
  • CPP. The EPA must review its Clean Power Plan (CPP) (October 23, 2015, FR) and any associated guidance for consistency with EO’s objectives and as soon as practicable issue a proposal to suspend, withdraw, or revise the rule and rescind the guidance.
  • EPA litigation. The EPA must confer with the attorney general to request the courts to stay or delay litigation affecting:
    • The CPP.
    • Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units (October 23, 2015, FR).
    • Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations; Proposed Rule (October 23, 2015, FR).
  • CPP legal memo. The EPA must suspend, revise, or rescind, as appropriate and consistent with law, the Legal Memorandum Accompanying Clean Power Plan for Certain Issues, which was published in conjunction with the CPP.
  • Oil and gas (O&G) emissions. The EPA must review for consistency with the EO the Agency’s final rule, Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources (June 3, 2016, FR).
  • Social cost of carbon. The administration will review Estimates of the Social Cost of Carbon, Nitrous Oxide, and Methane for Regulatory Impact Analysis. Also the Interagency Working Group (IWG) on Social Cost of Greenhouse Gases must be disbanded, and documents issued by the IWG must be withdrawn.
  • Federal land and O&G rights. The secretary of the Interior must take all steps necessary and appropriate to amend or withdraw the secretary’s Order 3338 dated January 15, 2016 (Discretionary Programmatic Environmental Impact Statement (PEIS) to Modernize the Federal Coal Program) and lift any and all moratoria on federal land coal leasing activities related to Order 3338. Also, the secretary must also review and, if consistent with the EO, suspend, withdraw, or revise four final rules:
    • Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (March 26, 2015, FR).
    • General Provisions and Non-Federal Oil and Gas Rights (November 4, 2016, FR).
    • Management of Non-Federal Oil and Gas Rights (November 14, 2016, FR)
    • Waste Prevention, Production Subject to Royalties, and Resource Conservation (November 18, 2016, FR).

Following these reviews, the secretary must also ask the attorney general to request that the court stay or delay litigation regarding these rules.