Among the many other presidential actions taken on the first day of his Administration, U.S. President Trump declared a National Energy Emergency under the authority granted him by the National Emergencies Act. The Executive Order emphasizes oil and gas above other forms of energy in the United States, a sentiment that President Trump reiterated during his press conference when he repeated his “Drill Baby, Drill” campaign rallying cry.
The Executive Order concludes that policies under the Biden Administration are responsible for creating a precariously inadequate and intermittent energy supply as well as an unreliable grid. The Order further states that (1) the integrity and expansion of the U.S. energy infrastructure is an immediate and pressing priority for the protection of the United States’ national and economic security; (2) current inadequate development of domestic energy resources leaves the United States vulnerable to hostile foreign actors and poses an imminent and growing threat to the nation’s prosperity and national security; and (3) the United States’ insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to the country’s economy, national security, and foreign policy. In view of these findings, the Executive Order declares a national emergency.
The Order then outlines steps to address the energy emergency, some of which are highlighted below.
The Order instructs heads of executive departments and agencies (collectively, “agencies”) to use any emergency and other authorities available to them “to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on Federal lands.” The Environmental Protection Agency (“EPA”) is to consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline to meet any projected temporary shortfalls in the supply of gasoline across the Nation.
The Order also instructs agencies “to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects” within their authority.
In addition, the Order instructs agencies to use all emergency or other authorities “to facilitate the supply, refining, and transportation of energy in and through the West Coast of the United States, Northeast of the United States, and Alaska.”
The Order seeks to accelerate the realization of covered energy projects through the use of emergency measures related in large part to permitting under a number of statutes, including the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection Research and Sanctuaries Act. The Order also intends to accelerate review and consultations with respect to covered energy projects required under the Endangered Species Act.
Notably, the Order places an emphasis on oil and gas energy sources. The terms “energy” or “energy resources” are defined in the Order to mean crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals. The list does not include, for example, solar or wind energy, which were key priorities under the Biden Administration’s climate policies. It remains to be seen whether alternative energy sources can receive the benefits that focus on other energy sources.
The Order also defines “energy supply” as the production, transportation, refining, and generation of energy; and “generation” as the use of energy to produce electricity or thermal power and the transmission of electricity from its site of generation. The Order does not address energy storage projects, regardless of the source or type of energy being stored. Thus, it is unclear whether and to what extent storage projects related to electricity, oil, gas, or petroleum products may benefit from the Executive Order.
Cassidy Levy Kent has extensive experience assisting clients in understand the evolving U.S. energy policy landscape and leveraging opportunities presented by new legal developments. Contact us with any questions.