Trump executive order on domestic energy policy

U.S. President Donald Trump has signed an executive order affecting domestic energy policy.  His March 28, 2017 Presidential Executive Order on Promoting Energy Independence and Economic Growth includes a variety of directives, generally aimed at reducing federal regulations affecting domestic energy production.  Here's a look at his Executive Order targeting Obama-administration climate regulations and other agency actions that potentially burden the development or use of domestically produced energy resources.

The Executive Order includes 8 operative sections.  One provides policy statements; six call for regulatory reviews that could lead to rule changes or revocations, or directly revoke and rescind Obama-era actions.  The final section includes general provisions.

Section 1 includes five policy statements, such as that "is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation."  It also sets a federal policy "that executive departments and agencies (agencies) immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law."

Section 2 calls for an immediate review of all agency actions that potentially burden the safe, efficient development of domestic energy resources, "with particular attention to oil, natural gas, coal, and nuclear energy resources."  It directs agency heads to submit a memorandum to the Office of Management and Budget detailing such potentially burdensome actions, and including "specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production."  With respect to actions targeted with specific recommendations in a final report, agency heads are directed to "as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, those actions, as appropriate and consistent with law."

Section 3 rescinds or revokes a variety of Presidential actions and reports, including several of President Obama's executive orders regarding climate change, the President's 2013 Climate Action Plan, and the Council on Environmental Quality's 2016 final guidance for federal agencies on consideration of greenhouse gas and climate issues in performing reviews of agency actions under the National Environmental Policy Act.

Section 4 calls for the Administrator of the Environmental Protection Agency to "immediately take all steps necessary to review" the Clean Power Plan governing electricity-sector emissions and related rules "for consistency with the policy set forth in section 1 of this order and, if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules."

Section 5 disbands a working group on the social cost of greenhouse gas emissions, and restricts the ways agencies may account for the monetary value of changes in greenhouse gas emissions resulting from regulations.

Section 6 calls for the Secretary of Interior to lift moratoria on federal land coal leasing activities imposed under a 2015 order, and to commence federal coal leasing activities.

Section 7 calls for review of federal regulations affecting emissions from the oil and gas sector, including 2016 emissions standards for new, reconstructed and modified sources, and a 2015 rule governing hydraulic fracturing on federal and Indian lands, among others.

Section 8 includes general provisions, generally similar to those found in other executive orders.

NEPA guidance on greenhouse gas emissions

Federal agencies have new guidance on how to address the effects of greenhouse gas emissions and climate change as those agencies satisfy their duties under the National Environmental Policy Act.  This month the White House Council on Environmental Quality or CEQ issued its 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.  The document is designed to improve clarity and consistency in how federal agencies address climate change in the environmental impact assessment process under NEPA.

Enacted in 1970, NEPA generally requires agencies to consider the environmental effects of proposed agency actions, and to provide the public and decision makers with useful information regarding reasonable alternatives and mitigation measures.  To coordinate federal environmental efforts, NEPA also established CEQ within the Executive Office of the President.  CEQ is now charged with issuing mandatory regulations for NEPA implementation, as well as guidance documents such as the recent greenhouse gas guidance.

In its final greenhouse gas guidance, CEQ described climate change as "a fundamental environmental issue" whose effects fall squarely within NEPA's purview.  In CEQ's words, "Analyzing a proposed action’s GHG emissions and the effects of climate change relevant to a proposed action — particularly how climate change may change an action’s environmental effects — can provide useful information to decision makers and the public." CEQ views focused and effective consideration of climate change in NEPA reviews as enabling higher quality agency decisions.

To this end, CEQ offered guidance that:

when addressing climate change agencies should consider: (1) The potential effects of a proposed action on climate change as indicated by assessing GHG emissions (e.g., to include, where applicable, carbon sequestration); and, (2) The effects of climate change on a proposed action and its environmental impacts.

The guidance presents further information and interpretation on each of these points. For example, it recommends that agencies quantify the direct and indirect greenhouse gas emission resulting from a proposed agency action, as well as both short- and long-term adverse and beneficial effects.  The guidance also stated that "a NEPA review should consider an action in the context of the future state of the environment." 

In one sense, the final guidance is just guidance.  As CEQ noted, agencies have discretion in how they tailor their individual NEPA reviews to accommodate the guidance. CEQ directed that agencies should apply this guidance to all new proposed agency actions as of the initiation of NEPA review.  It suggested that agencies "should exercise judgment" when considering the application of the guidance to an on-going NEPA process, but that CEQ does not expect agencies to apply the guidance to concluded NEPA reviews, nor to any actions for which a final Environmental Impact Statement (EIS) or Environmental Assessment (EA) has been issued.

CEQ recommended that agencies review their NEPA procedures and propose any updates they deem necessary or appropriate to facilitate their consideration of greenhouse gas emissions and climate change.  Agency procedures to implement NEPA may be in the form of regulations, although they are not required to take that form.  CEQ's final guidance on greenhouse gas emissions may lead other federal agencies to revise regulations, policies, or implementing procedures to ensure full compliance with NEPA.