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42 Env't F. 19 (2025)
Trump Executive Orders Confound Energy Transition Practitioners

handle is hein.journals/evnmtlfrum42 and id is 89 raw text is: Trump Executive Orders Confound Energy Transition Practitioners President Trump commenced his rollback of certain low-carbon energy policies in a flurry of ex- ecutive orders. For practitioners repre- senting clients in the energy transition, the implications depend on the type of energy, technology, or specific policy in question, and how they are perceived to fit with the administration's new en- ergy dominance paradigm. Policies promoting electric vehicles are in the bullseye, with explicit direc- tives to end regulations and incentives favoring EV adoption. Offshore wind was targeted with a memorandum pausing leasing and permitting on pub- lic lands pending a new review. The ex- ecutive orders also hit the pause button on grants and loan incentives under the Infrastructure Investment and Jobs Act and Inflation Reduc- tion Act, but the Of- fice of Management Trum[ and Budget later is- sewed co sued a memo indicat- they als ing that this funding pause would only ap- ply to programs and technologies, such as EV infrastructure, deemed to be inconsistent with the administration's core policies. (As this column goes to press, an even more sweeping pause on federal spending was temporarily enjoined in court.) These changes were part of an ex- pected policy shift boosting develop- ment of oil, gas, and minerals, accom- panied by withdrawal of a long slate of previous policies relating to environ- mental justice and the social cost of carbon. Agencies were also directed to reconsider, revise, and/or rescind regu- lations that pose an undue burden on domestic energy resources. But the executive orders may present opportunities, too. The domestic ener- gy resources to be relieved of regulatory burdens expressly include, not only fossil fuels, but important categories of low- and zero-carbon technologies critical to the energy transition: hydro- power, biofuels, critical mineral, and nuclear energy resources. Moreover, the executive orders include major ini- tiatives to promote domestic produc- tion of critical minerals that are in high demand for energy storage and renew- able energy solutions. Another key opportunity for the energy transition is a commitment to permitting reform, raising hope among practitioners that the nation's labyrinthine regime of environmental review can be streamlined to allow for the buildout of all kinds of energy in- frastructure, including expansion and modernization of the grid. Permitting reform, however, is an enormously complex task, and the executive or- ders provide few details, other than a directive to rescind CEQs centralized NEPA regulations, which could frustrate moves reform efforts by forc- o b ing policy changes to e - be implemented one agency at a time. nities Questions abound. A national energy emergency has been declared, direct- ing federal agencies to use emergency authorities to expedite energy projects, including by using authorities under the Defense Production Act. But how will this play out in practice? The gov- ernment is required within 30 days to identify planned or potential actions to increase energy supply. Of particular note to energy transition practitioners, projects eligible for expedited approval include those relating to uranium, coal, biofuels, geothermal heat, the ki- netic movement of flowing water, and critical minerals. Wind, solar, and stor- age are conspicuously absent. Companies and investors in the energy transition are also keenly inter- ested in the spending pause under the IRA and IIJA. Hundreds of millions of dollars supporting clean energy proj- ects are potentially at stake. In general, when Congress appropriates money to the executive branch, the president is required by law to obligate the funds. And the executive branch must comply with any conditions attached to such appropriated funds under the Anti- deficiency Act. The administration may be teeing up a legal dispute over the Impoundment Control Act, which says presidents can only impound funds they don't want to disburse by submit- ting requests to Congress. Other questions include which greenhouse gas and energy efficiency regulations will be rescinded, which will be retained, and to what extent will the administration and Congress seek to utilize the streamlined procedures in the Congressional Review Act to ef- fect these changes? The implications of using the CRA to claw back Biden-era regulations are significant-the CRA prohibits an agency from issuing a sub- stantially similar regulation without permission from Congress. Regulations finalized August 2024 or later are po- tentially in the cross-hairs. The executive orders also direct EPA to review the legality and continuing applicability of the agency's endanger- ment finding with respect to the im- pacts of greenhouse gases and climate change, the lynchpin of the greenhouse gas regulations that EPA has issued since Massachusetts v. EPA teed up the issue in 2007. The first Trump administration nev- er went this far. Whether the current one will decide it is worth taking on this fight is one of dozens of questions to be litigated in the months ahead. MARCH/APRIL 2025 | 19

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