The Nickel Report

Hours after being inaugurated for his second term, President Donald J. Trump signed an Executive Order entitled Unleashing American Energy. The Executive Order broadly states that it is the policy of the United States to encourage energy exploration and production on Federal lands and waters, ensure continuous energy supply, as well as establish the country as the leading producer of nonfuel minerals.  

The Executive Order aims to increase domestically produced energy supply, while also establishing a number of key policy directions to reform demand side energy policy, including eliminating electric vehicle (“EV”) mandates, including state waivers and subsidy programs for the purchase of EVs, and to ensure and protect consumer choice in goods and products such as appliances and the elimination of efficiency standards It also provides policy goals of ensuring all regulations are grounded in law and should note the distinction between domestic and foreign benefits of the regulation during the rulemaking process.

President Trump withdraws all 12 Executive Orders issued by President Biden related to climate change, environmental justice, EVs, the Inflation Reduction Act, and sustainability as well as terminates the American Climate Corps. And in a significant move, the Executive Order requires any funds or resources allocated to an entity or program abolished under the order to be disposed in accordance with the applicable law and the termination as quickly as possible of any contract between the United States and a third party that was entered into for the purpose carryout projects initiated under the withdrawn Biden Era Executive Orders.

The President directs several actions, including the immediate review of all agency actions affecting the development of domestic energy resources, such as  oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy.  It also direct agencies, within 30 days of identifying any agency action that unduly burdens the production of domestic energy resources, to develop and begin action plans to rescind or revise the agency actions. Further, the agencies are directed to notify the Attorney General so that appropriate action may be taken in any pending litigation, including the request of a stay, related to the identified agency action.

The Executive Order additionally disbands the Interagency Working Group on the Social Cost of Greenhouse Gases and the guidance documents promulgated thereunder. Within 60 days, the EPA is directed to issue and new guidance on the “social cost of carbon,” including possibly eliminating it from the calculation of any permitting or regulatory decision. Until the EPA, issues its new guidance on the “social cost of carbon,” the guidance of OMB Circular A-4 of September 17, 2003 is reinstated and applies to all rulemaking proceedings. Lastly, the EPA is directed to reconsider and make recommendations on the legality and applicability of  “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” Final Rule, 74 FR 66496 (December 15, 2009), which is the foundational action underpinning all of EPA’s greenhouse gas regulations.      

The Executive Order also has a focus on permitting, directing EPA, Department of Interior (“DOI”), and Department of Defense, to eliminate delays or inefficiencies in the permitting process, including through the use of general permits or permits by rule. As to NEPA, the Council on Environmental Quality (“CEQ”) is directed to propose to rescind its NEPA implementation regulations and issue new implementation guidance within 30 days. Lastly, the National Economic Council and Office of Legislative Affairs must jointly prepare recommendations to Congress to facilitate permitting and development of energy infrastructure projects.

The Executive Order also targets funding appropriated under the Inflation Reduction Act and Infrastructure Investment and Jobs Act and requires the immediate pause on the disbursement of any additional funds under the Acts. Agency heads are directed to review their process and policy for issuing grants or funding the appropriated money for consistency with the United States policy to expeditiously and efficiently develop domestic energy resources among the other policy considerations outlined in the Executive Order. The Director of OMB is charged with providing guidance at to how agencies will prioritize such considerations involving federal funding. Agencies are also required to assess whether enforcement discretion can be utilized to advance the domestic development of energy resources and each agency shall submit a report to OMB within 30 days that identifies such instances. 

The Department of Energy is directed restart reviews of applications and approvals of liquified natural gas export projects as expeditiously as possible. For liquified natural gas projects that had previously been approved by the Maritime Administration (“MARAD”) pursuant to the Deepwater Port Act of 1974 (“DWPA”),  MARAD is required to determine whether any modifications to such projects are likely to result in adverse environmental consequences that are substantially different in nature than the potential consequences that were evaluated at the time of the project’s initial approval.  There are also a series of expedited timelines for review and reporting to the President and Department of Transportation.

The Executive Order also seeks to facilitate American mining of non-fuel minerals and directs the DOI, Department of Agriculture (“USDA”), EPA, and CEQ to identify any agency actions which pose undue burdens on domestic mining and take steps to undue such agency actions. DOI and USDA are required to reassess public lands that had been withdrawn from mining consideration. Additionally, DOI is required to consider updating the U.S. Geological Survey’s list of critical minerals and must prioritize and accelerate the geologic mapping of the United States with a  focus of identifying unknown deposits of critical minerals. Further, relevant agencies are directed to evaluate whether foreign mining projects utilize exploitative practices, have national security implications, or unlawfully or unduly restrict U.S. commerce. Lastly, within 60 days, the Secretary of State and other relevant agencies must submit a report to the President that includes policy recommendations to enhance the competitiveness of American mining.