About Face?: Bulk Power System Executive Order Suspended For 90 Days

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On January 15, 2021, the Department of Energy (DOE) stated[1] that it intended to issue a notice of proposed rulemaking later this year as directed under the May 2020 Executive Order on Securing the United States Bulk-Power System (BPS EO)[2]. Less than a week later (and with a new Federal Administration in power), the BPS EO has been suspended for at least 90 days. Although the ultimate fate of the BPS EO has not yet been determined, the action by the current Administration to suspend the BPS EO is a firm indication that this Administration will approach security issues in the energy supply chain differently from previous efforts.

President Biden issued the Executive Order Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Climate EO)[3] on January 20, 2021, with the goal of advancing “environmental justice.” Among other things, the Climate EO suspends the BPS EO for 90 days, and directs the Secretary of Energy and the Director of the Office of Management and Budget (OMB) to jointly consider whether they recommend a replacement order to address the U.S. government’s concerns about cybersecurity.

The Climate EO clearly states Biden’s policy objectives[4] and calls upon all Federal agencies to immediately review and take action on any Federal regulation implemented between January 20, 2017, and January 20, 2021, that contravenes those stated objectives – and, most importantly, “to immediately commence work to confront the climate crisis”. Such actions expressly include suspending, revising, or rescinding any conflicting Federal regulations.

While the immediate next steps for the BPS EO were expressly addressed in the Climate EO[5], more generally, the Climate EO also provides a timeline for the expected rollout of any other actions that the Federal agencies may propose. It contemplates:

  • February 19, 2021 – Deadline for each agency to submit to the OMB a list of the actions it proposes to take by December 31, 2021, in response to the Climate EO
  • April 20, 2021 – Deadline for each agency to submit to the OMB an updated list of the actions it proposes to take by December 31, 2025, in response to the Climate EO
  • December 31, 2021 – Deadline for initial wave of proposed actions responsive to the Climate EO
  • December 31, 2025 – Deadline for second wave of proposed actions responsive to the Climate EO

Background

The BPS EO was issued by Biden’s predecessor on May 1, 2020, and was the most public and potentially far-reaching action to address long-standing U.S. government concerns about security of the energy grid. It directed the Secretary of Energy to develop regulations within 150 days to provide for the evaluation and prohibition of transactions that pose a risk to the U.S. bulk power system “designed, developed, manufactured, or supplied, by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary.” While initially undefined, “foreign adversaries” was later determined to include China, Russia, Iran, North Korea, Cuba, and Venezuela, but such list was subject to change.

The BPS EO also created many questions for affected parties, and the DOE issued a Request for Information (RFI) on July 8, 2020. The RFI sought “information to understand the energy industry’s current practices to identify and mitigate vulnerabilities in the supply chain for components of the bulk‑power system (BPS).”[6] The initial deadline for responses was ultimately extended to August 24, 2020. The RFI responses are publically available[7], but at the time of DOE’s January 15, 2021 notice, the DOE was continuing to review the RFI responses and intended to issue its notice of rulemaking later in 2021, despite missing the September 28, 2020 deadline (or 150 days after the BPS EO issuance) to develop regulations as dictated in the BPS EO.


[1] See Notice, Office of Electricity, U.S. Department of Energy, “Securing the United States Bulk-Power System Executive Order,” available at https://www.energy.gov/oe/articles/securing-united-states-bulk-power-system-executive-order.

[2] See Exec. Order No. 13,920, Securing the United States Bulk-Power System, 85 Fed. Reg. 26,595 (May 4, 2020). The BPS EO is no longer available on the WhiteHouse.gov website.

[3] See Exec. Order No. 13,990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7,037 (Jan. 25, 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-science-to-tackle-climate-crisis/.

[4] The President’s stated policy in the Climate EO is “to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”

[5] While the Climate EO directs the Federal agencies to “review and take action” on some applicable Federal regulations, the BPS EO and certain other specified executive orders received more detailed treatment in the Climate EO. Interestingly, while certain prior orders are immediately revoked and others receive unique timelines for when the applicable agency is directed to issue a notice of potential rulemaking, only the BPS EO is suspended by the Climate EO. 

[6] See Notice, Office of Electricity, U.S. Department of Energy, “Securing the United States Bulk-Power System,” 85 Fed. Reg. 41,023 (July 8, 2020) available at https://www.govinfo.gov/content/pkg/FR-2020-07-08/pdf/2020-14668.pdf .

[7] See U.S. Department of Energy, Docket ID DOE-HQ-2020-0028, available at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&D=DOE-HQ-2020-0028

[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.

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