On March 28th, President Trump issued an Executive Order entitled “Promoting Energy Independence and Economic Growth.” In addition to rescinding key pieces of the Obama administration’s environmental agenda, the Order requires federal departments and agencies to begin a review process that will likely result in the rolling back of Obama-era regulations designed to prepare the country for climate change and reduce pollutants such as carbon and methane. This loosening of regulations on fossil fuel industries signals President Trump’s intent to withdraw from climate change action.
Although President Trump’s order stops short of withdrawing the U.S. from the Paris Climate Agreement, the directive is clearly aimed at preventing regulatory overreach. It mandates that federal agencies present to the OMB a plan for reviewing all agency actions (regulations, orders, guidelines, policies, etc.) that “potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.” Interestingly, the Order specifically states that agencies are not required to review “agency actions that are mandated by law.” In fact, the Order states multiple times that it is not intended to interfere with or change any requirements imposed by law – presumably meaning that regulations mandated by NHPA and NEPA will be unaffected.
Nevertheless, because it rescinds the White House Council on Environmental Quality’s 2016 guidelines, President Trump’s order will reduce pressure on federal agencies to factor climate change into NEPA reviews. However, if agencies begin producing environmental reviews without considering greenhouse gas effects, litigation will certainly ensue, with plaintiffs alleging that under NEPA, agencies legally cannot disregard climate change. Courts will therefore remain at the crux of such considerations no matter how much President Trump attempts to loosen the regulatory reins.
While these strokes of the pen will result in some quick changes for agency programs, many potential impacts of President Trump’s order will be more delayed. Rescinding or revising current regulations will trigger lengthy formal rule-making procedures, which can take up to two years. Court challenges will also hinder implementation of President Trump’s order in the short term and perhaps dampen its practical significance.