Administration's Executive Order on Climate and Energy Is Controversial, and May Shift Action to States

by Morrison & Foerster LLP
Contact

Morrison & Foerster LLP

On March 28, 2017, President Trump issued an “Executive Order on Promoting Energy Independence and Economic Growth” (E.O.) that takes aim at a broad range of federal climate and energy programs and regulations. The E.O. articulates a policy direction that runs counter to the previous administration’s Climate Action Plan and sets in motion a process to reverse many of the actions associated with that Plan. In addition, the E.O. lifts the current leasing moratorium on federal coal and starts a process to revise certain oil and gas programs and rules.

Implementation and execution of the E.O. and this new policy direction will almost certainly face significant procedural and operational hurdles, as well as strong opposition from diverse constituencies on multiple fronts. Additionally, states that have long been leaders in the climate and clean energy area, such as California, and states that have more recently begun to assert leadership in that area, such as New York, can be expected to increase their efforts.

Restarting the Clean Power Plan Process

The E.O. seeks to restart the process around the Clean Power Plan (CPP). In 2015, the EPA finalized the CPP, the first-ever greenhouse gas emissions limits for existing power plants under the Clean Air Act. As anticipated, the regulations were challenged by a number of states and industry interests in the D.C. Circuit. On February 9, 2016, the Supreme Court issued a stay, keeping the regulations from taking effect before a decision on the merits could be issued. On September 27, 2016, the D.C. Circuit heard oral argument en banc. It has not yet ruled. On the same day the E.O. was signed, the Justice Department on behalf of the EPA filed a motion asking the D.C. Circuit to “hold these cases in abeyance” while the agency conducts its review of the CPP. It is likely that advocates of the CPP will strongly oppose any such suspension of the case. These advocates include not only environmental organizations but also States that have intervened in support of the CPP.

In the meantime, it is likely that the EPA will start a new proceeding to repeal or significantly modify the regulations supporting the CPP. This lengthy process of public comment will likely involve not just regulations on existing sources but also related regulations on new sources, trading, and model state plans. The exact direction the Administration will choose remains unclear. In announcing the E.O., senior officials questioned whether greenhouse gas emission limits for power plants are required at all. This question – namely, whether the decision in Massachusetts v. EPA, a “mobile source” case, applies to “stationary sources” – was raised by some in the utility industry in litigation before the D.C. Circuit in UARG v. EPA, which upheld greenhouse gas regulation of stationary sources. The Supreme Court declined to take up that specific issue when it granted review in the case.

Taking Aim at Other Climate Action Plan Elements

The E.O. creates uncertainty around other elements of the Climate Action Plan. Two elements of the E.O. unsettle programmatic approaches, returning the default agency action to project-by-project level judgments. The result could be litigation involving executing agencies.

First, the E.O. abandons use of the “social cost of carbon” (SCC) in federal decision making. The SCC was the product on an interagency process undertaken by the previous Administration, seeking to quantify the costs of climate inaction and use that economic analysis in rulemakings. Recent litigation shows how failure to account for the social costs of carbon may be challenged, at least at the project-level. For example, in Colorado, the U.S. Forest Service was admonished by a federal judge for failing to use the social cost of carbon in a National Environmental Policy Act (NEPA) analysis. The High Country case shows how other laws could be used to challenge a lack of analysis of climate impacts with respect to federal undertakings.

Second, the E.O. withdraws the Council on Environmental Quality guidance that outlined how executive department agencies undertake climate analysis as part of NEPA processes. Again, this decision is likely to introduce the same project-level uncertainty that prevailed before the guidance was adopted. See Center for Biological Diversity v. National Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008).

Finally, the Administration is pulling back E.O. 13653 of November 1, 2013 (Preparing the United States for the Impacts of Climate Change), and the Presidential Memorandum of September 21, 2016 (Climate Change and National Security). Both had laid out internal procedures for federal agencies and departments – especially as they relate to internal planning around climate adaptation and resilience.

Energy Actions Reaching Beyond the Climate Action Plan

The E.O. also seeks to reverse the previous Administration’s approach to coal, oil, and natural gas in other ways. First, the E.O. ends the moratorium on leasing of new coal mining lands through the Interior Department. Future leases, however, may be subject to environmental litigation. Second, the E.O. seeks to revise or rescind Interior Department regulations associated with hydraulic fracturing on public lands. The Interior Department recently signaled this move in a motion before the Tenth Circuit, where the fracking rule is being litigated.

The E.O. takes a similar approach to the Interior Department’s regulation regarding venting and flaring of natural gas for production on public lands. In addition to these steps on public lands, the E.O. directs the EPA to review the final rule entitled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources” for consistency with the Trump Administration’s policy direction.

Finally, the Administration has kicked off a process that pulses the federal agencies for new ideas on ways to promote “Energy Independence” by focusing on existing agency actions that potentially burden the safe, efficient development or use of domestic energy resources, signaling likely future executive actions on this subject.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP | Attorney Advertising

Written by:

Morrison & Foerster LLP
Contact
more
less

Morrison & Foerster LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.