USA – TEXAS Trends and Developments Contributed by: Gerald J. Pels, Gerald D. Higdon, James Beers, Jr., Elizabeth Corey and Brett A. Miller, Troutman Pepper Locke
Troutman Pepper Locke 600 Travis Street Suite 2800 Houston, TX 77002 USA Tel: +1 713 226 1200 Fax: +1 713 223 3717 Email: Gerry.pels@troutman.com Web: www.troutman.com
Winds of Change: the Environment and Executive Power in the New Administration Introduction With “drill baby drill” being a campaign rallying cry, it was apparent that, if elected, the Trump administration would seek to shift US energy policy. Few, however, were prepared for the near-dizzying pace of Executive Orders (EOs) and proposed agency actions that will have potentially long-lasting impacts for the US ener- gy industry. Given the detail set forth in the EOs, it is clear the administration was prepared well in advance for this moment. On the surface, the administration seeks to rationalise environmental regulation to reset the economic balance between renewable energy and fossil fuels, and perhaps to favour fossil fuel development. That, however, is a superficial analysis. The administration’s approach to ener- gy development is intertwined with its foreign policy. This article identifies key EOs issued to date and related agency actions affecting envi- ronmental regulation of the energy industry, and discusses their impact on the energy industry. The article concludes with a discussion of what the future may hold for the industry and for the environmental legal and regulatory community. Of course, all of this requires a crystal ball of the
highest quality – and few environmental crystal balls were able to predict the Trump administra- tion’s first five months. Key EOs and Agency Actions Directed Generally at Energy Production Declaring a national energy emergency: EO 14156 By formally declaring the existence of a national energy emergency, President Trump has invoked the National Emergencies Act (NEA). The scope of Presidential authority under the Act remains unclear, as there has been little litigation inter- preting it. Prior to its passage in 1976, pre-NEA emergency powers were understood to include a wide range of authority, including the ability to regulate the operation of private enterprise. Given that expanse of potential authority, it is possible that a President – when declaring an energy emergency – could reasonably assert that laws and rules restricting an industry, hin- dering energy production or making it unreason- ably more costly could be suspended or revoked entirely. Courts have been loath to challenge an executive’s assertions of emergency. As such, it is possible that the Trump administration could use the concept of emergency power to seek to
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