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It has been just a few weeks since President Donald J. Trump returned to the White House and, wow, what a whirlwind it has been. In the midst of the constitutional extreme event brought on by the administration, this blog post seeks to do one thing: review the emergency authorities invoked in Executive Order 14156, Declaring a National Energy Emergency, and assess what types of actions we might reasonably expect to see come from it. If reasonable expectations are applicable, anymore.

The purpose of President Trump’s order is to declare a “national energy emergency” based on his assertion that the United States has unrealized energy resources and that the previous administration’s policies caused “a precariously inadequate and intermittent energy supply” and “unreliable grid;” led to high energy prices; and threaten the economy, national security, and foreign policy. Government research and independent assessments (see, e.g., here and here) contradict President Trump’s findings about insufficient energy supply and grid unreliability. In fact, fossil fuel production reached record levels under President Biden. Nevertheless, based on the declared emergency, Trump directs agencies to bolster fossil fuel infrastructure through a series of actions described in the order.

As a general matter, the President derives emergency powers from the Constitution and statutes. Although presidential emergency powers can be quite expansive, the Supreme Court made clear in Biden v. Nebraska that emergency authority does not empower the President to take actions free from statutory limitations. In other words, announcing a “national energy emergency,” regardless of fanfare and spectacle, does not give President Trump carte blanche to pursue his energy policy. In exercising emergency powers, the administration must act in accordance with the purposes and limitations of the laws granting those powers. Assuming, that is, that the rule of law continues to prevail in the United States.

Although there are several emergency authorities that Trump’s administration could seek to employ—and many more non-emergency legal authorities—the success of this strategy may well depend in part on the legitimacy of the underlying emergency declaration. Because many authorities leave some ambiguity as to what constitutes a sufficient “emergency,” an argument might be made that agency action taken based on a flawed emergency premise could be subject to “arbitrary and capricious” challenges.

Executive Order 14156 cites a handful of specific statutory provisions and regulations but also asks agencies to search for any and all lawful authorities they can use to advance President Trump’s energy policy, in an over-the-top, see-if-it-sticks, everything-and-the-kitchen-sink approach. This blog post breaks down the emergency authorities in two parts. The first examines what could be included in the sections that call upon “any lawful emergency authorities” to carry out broad policy directives. The second evaluates the specific provisions named in the order.

Trump’s reliance on “any lawful emergency authorities”

Sections 2(a) and 3 of Executive Order 14156 contain a broad directive to agencies to develop domestic energy resources on or off federal lands by facilitating “identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources,” with a particular focus on the West Coast, Northeast, and Alaska. To accomplish this, the Executive Order instructs agencies to rely on “any lawful emergency authorities” available to them.

The universe of possible legal authorities related to the activities named above is vast. There are many laws that regulate the leasing of public lands for fossil fuel production and the development of fossil fuel energy infrastructure, such as liquified natural gas (LNG) and coal export terminals, oil and gas pipelines, coal rail transport, refineries, and more. Here, we categorize those legal authorities in four buckets: (1) those that contain no emergency provisions; (2) those with emergency provisions that are irrelevant to, or don’t further the purpose of, increasing energy supply or addressing energy prices; (3) those with emergency authorities that require compliance with statutory criteria, including definitions of “emergency;” and (4) those with emergency authorities that require only a presidential or congressional declaration of “national emergency,” or give no guidance as to what qualifies as an “emergency.”

No emergency provisions

Leasing federal lands for fossil fuel extraction and infrastructure:

Regulating refineries:

Emergency provisions are irrelevant or don’t further Executive Order’s purpose

Leasing federal lands for fossil fuel extraction and infrastructure:

  • Federal Land Policy and Management Act: Includes, for example, emergency authorities related to search and rescue on public lands or wildfire response. 43 U.S.C. §§ 1742, 1748a.
  • Outer Continental Shelf Land Act: Authorizes the Secretary of the Interior to suspend operations of an OCS lease during a “national emergency declared by the Congress or the President of the United States.” 43 U.S.C. § 1341. (Note, however, that offshore wind leases have also been issued under this Act and could potentially be affected by this provision.) Also allows the Secretary to sell gas in a sale limited to buyers in a region with an “emergency shortage of natural gas [that] is threatening to cause severe economic or social dislocation.” 43 U.S.C. § 1353(c).

Siting fossil fuel infrastructure:

  • Natural Gas Act: Authorizes the President to declare a natural gas supply emergency and require that natural gas be saved for high-priority uses. To declare a “natural gas supply emergency,” the President must find: (1) “a severe natural gas shortage, endangering the supply of natural gas for high-priority uses, exists or is imminent;” and (2) the exercise of this authority is “reasonably necessary, having exhausted other alternatives . . . to the maximum extent practicable, to assist in meeting natural gas requirements for such high-priority uses.” 15 U.S.C. § 717z(a).

Regulating refineries:

  • Resource Conservation and Recovery Act: Authorizes EPA to sue any person contributing to “imminent and substantial endangerment to health or the environment” in the “handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste.” 42 U.S.C. § 6973.

Emergency provisions require that certain criteria, including definitions of “emergency,” be met

Leasing federal lands for fossil fuel extraction and related infrastructure development:

  • 43 C.F.R. § 3425: Provides “an application process through which the [Interior] Department may consider holding lease sales apart from the competitive leasing process . . . where an emergency need for unleased coal deposits is demonstrated.” To hold an emergency lease sale, the applicant must demonstrate that certain requirements are met, including that “the need for the coal deposits shall have resulted from circumstances that were either beyond the control of the applicant or could not have been reasonably foreseen.”

Siting and regulating fossil fuel transportation infrastructure:

  • Federal Pipeline Safety Laws: Authorizes the Secretary of Transportation to grant emergency waivers to pipeline operators, waiving compliance with safety standards. The Secretary must determine the waiver is: (i) in the public interest; (ii) not inconsistent with pipeline safety; and (iii) “necessary to address an actual or impending emergency involving pipeline transportation, including an emergency caused by a natural or manmade disaster.” 49 U.S.C. § 60118(c)(2).
  • Natural Gas Act: Provides that FERC “may issue a temporary certificate [for construction or operation] in cases of emergency, to assure maintenance of adequate service or to serve particular customers.” 15 U.S.C. § 717f. The D.C. Circuit Court of Appeals has described this authority as being “meant to cover a narrow class of situations, to permit temporary and limited interconnection, or expansion of existing facilities in order to meet such emergencies as breakdowns in the service of operating natural gas companies, or sudden unanticipated demands” but not, for example, an emergency created by a foreseeable increase in demand. Gas & Water Co. v. Federal Power Com’n.
  • Natural Gas Policy Act: Authorizes the President, in a declared natural gas supply emergency, to order “any interstate pipeline or local distribution company . . . to contract . . . for the purchase of emergency supplies of natural gas” and can make allocation decisions. 15 U.S.C. §§ 3362(a), 3363(a). To declare a natural gas supply emergency, the President must find (1) a “severe natural gas shortage” exists or is imminent; and (2) action is “reasonably necessary, having exhausted other alternatives to the maximum extent practicable.” 15 U.S.C. § 3361.
  • 49 U.S.C. § 20103: Authorizes the Secretary of Transportation to grant emergency waivers to railroad operators, waiving compliance with safety and operation standards. The Secretary must determine the waiver is: (i) in the public interest; (ii) not inconsistent with railroad safety; and (iii) “necessary to address an actual or impending emergency situation or emergency event.” “Emergency situation” and “emergency event” are defined as “a natural or manmade disaster, such as a hurricane, flood, earthquake, mudslide, forest fire, snowstorm, terrorist act, biological outbreak, release of a dangerous radiological, chemical, explosive, or biological material, or a war-related activity, that poses a risk of death, serious illness, severe injury, or substantial property damage.”

Regulating refineries:

  • Army Corps of Engineers emergency procedures guidance: Provides that, under “emergency situations,” permits issued by Army Corps of Engineers can proceed through the permitting process without following standard procedures. “Emergency” is described as “a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship.”

Generating fossil fuel energy:

  • 40 C.F.R. § 60.5525a(c)(3) (under Clean Air Act): Allows fossil fuel-fired power plants to continue operating during a “system emergency,” even if they are not in compliance with emissions performance standards. 40 C.F.R. § 60.5525a(c)(3). EPA defines “system emergency” as “periods when the Reliability Coordinator has declared an Energy Emergency Alert level 2 or 3 as defined by NERC Reliability Standard EOP-011-2 or its successor.” 40 C.F.R. § 60.5580a.
  • Federal Power Act: Provides that, “[w]henever the [Secretary of Energy] determines that an emergency exists by reason of a sudden increase in the demand for electric energy, or a shortage of electric energy or of facilities for the generation or transmission of electric energy or of fuel or water for generating facilities, or other causes,” DOE has the authority to order “such temporary connections of facilities and such generation, delivery, interchange, or transmission of electric energy as in its judgment will best meet the emergency and serve the public interest.” DOE must ensure the order is consistent with environmental law and minimizes environmental impacts “to the maximum extent practicable. 16 U.S.C. § 824a(c). The D.C. Circuit Court of Appeals clarified that this authority applies to “‘temporary’ emergencies, epitomized by wartime disturbances, and is aimed at situations in which demand for electricity exceeds supply and not at those in which supply is adequate but a means of fueling its production is in disfavor.” Richmond Power & Light v. FERC.
  • 42 U.S.C. § 8374: Grants the President emergency authority to order the allocation of coal for use by any electric power plant “to insure reliability of electric service or prevent unemployment, or protect public health, safety or welfare.” The President must declare a “severe energy supply interruption” and must find the shortage (i) is “of significant scope and duration, and of an emergency nature;” (ii) causes “major adverse impact on public health, safety, or welfare or on the economy;” and (iii) results from “an interruption in the supply of coal or from sabotage, or an act of God.”

Emergency provisions require only an “emergency”

  • Defense Production Act: Authorizes the President to provide loan guarantees to finance “production capabilities or supplies that are deemed by the guaranteeing agency to be necessary to create, maintain, expedite, expand, protect, or restore production and deliveries or services essential to the national defense.” When Congress or the President has declared a national emergency, the President need not make otherwise-required determinations about how the loan guarantee will serve national defense purposes. 50 U.S.C. § 4531(a)(1).
  • 40 C.F.R. § 1506.11 (under National Environmental Policy Act): Authorizes federal agencies to make “alternative arrangements for compliance” with NEPA when “emergency circumstances make it necessary” to proceed with an action with significant effects without first preparing an environmental impact statement.

Specifically identified authorities

Sections 2(b), 4, 5, 6, and 7 of Executive Order 14156 contain narrower directives tied to specific legal authorities. All of these authorities would fall into our “emergency provision requiring that certain criteria be met” category.

Section 2(b) of the Executive Order directs EPA to “consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline to meet any projected temporary shortfalls in the supply of gasoline across the Nation” using its authority under 42 U.S.C. 7545(c)(4)(C)(ii)(III). That provision allows EPA to “temporarily waive a control or prohibition respecting the use of a fuel [if] the Administrator determines that . . . it is in the public interest to grant the waiver (for example, when a waiver is necessary to meet projected temporary shortfalls in the supply of the fuel or fuel additive in a State or region of the Nation which cannot otherwise be compensated for).” This provision is not tied to emergency circumstances and does not specify how the “public interest” requirement should be evaluated. However, it describes the waiver as “temporary” in nature, which suggests that this is not meant to be a tool to bolster the “year-round sale of E15.”

Section 4 of the Executive Order directs agencies to use “the emergency Army Corps permitting provisions to facilitate the Nation’s energy supply” found in its regulations under section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act. The Army Corps of Engineers’ guidance (also discussed above) provides that, under “emergency situations,” permits issued by Army Corps of Engineers can proceed through the permitting process without following standard procedures. “Emergency” is described as “a situation which would result in an unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship.” The Executive Order also references section 103 of the Marine Protection Research and Sanctuaries Act. EPA’s regulations under the Act allow “emergency permits [to] be issued to dump [covered] materials where there is demonstrated to exist an emergency requiring the dumping of such materials, which poses an unacceptable risk relating to human health and admits of no other feasible solution.” The regulation defines “emergency” as “situations requiring action with a marked degree of urgency, but is not limited in its application to circumstances requiring immediate action.” 40 C.F.R. § 220.3(c).

Section 5 of the Executive Order directs the Department of the Interior to use its Endangered Species Act (ESA) “regulation on consultations in emergencies, to facilitate the Nation’s energy supply.” Interior’s regulation provides that “[w]here emergency circumstances [involving acts of God, disasters, casualties, national defense or security emergencies, etc.] mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act.” 50 C.F.R. § 402.05(a).

Section 6 of the Executive Order directs the Secretary of the Interior to convene the ESA Committee (often referred to as the “God Squad”) at least quarterly to review applications for ESA exemptions. It should also convene “to identify obstacles to domestic energy infrastructure specifically deriving from implementation of the ESA or the Marine Mammal Protection Act.” The Committee’s authority to meet and review applications for exemptions is granted by section 7(e)(2) of the ESA. Exemptions must meet specific conditions described in section 7(h), which are unrelated to emergency circumstances. According to the Congressional Research Service, the Committee has only granted two exemptions in its entire history. News sources suggest the Committee meets very rarely.

Section 7 of the Executive Order directs the Department of Defense to assess vulnerabilities related to “potentially insufficient transportation and refining infrastructure across the Nation” and “identify and recommend the requisite authorities and resources to remedy such vulnerabilities.” President Trump invoked the “construction authority” to address identified vulnerabilities, which provides: “In the event of . . . the declaration by the President of a national emergency . . . that requires use of the armed forces,” the Secretaries of the military departments can “undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.” 10 U.S.C. § 2808. It is doubtful that President Trump’s invocation of this authority could withstand scrutiny, as there is no indication that his declared energy emergency “requires use of the armed forces.” Further, Trump’s requested assessment is redundant with the Department of Defense’s existing statutory obligations to annually study its energy performance and resilience. 10 U.S.C. §§ 2925, 2926. The Department’s most recent annual report, the 2023 Operational Energy Strategy report, gives no indication of insufficient energy supply or concerns that shifting energy generation towards renewables poses a threat to military operations.

A few reflections on the Energy Emergency Executive Order

As with much of the Trump-Vance administration’s tactics to date, Executive Order 14156 creates an unexplained and unwarranted sense of urgency around an invented crisis. It leans into an unprecedented claim of constitutional authority to aggrandize power to the executive branch, even as the administration seeks to deconstruct the agencies designed to properly exercise executive authority. A close look at the terms of the Executive Order reveals that there are many statutory provisions upon which the Trump administration could, and likely will, attempt to rely on to further its fossil fuel agenda. But, even when there are emergency authorities on point, those powers are limited, and of limited help in advancing the Executive Order’s purported goals.

In addition, as discussed above, many laws include specific statutory criteria or descriptions of “emergency” circumstances which suggest that the declared energy emergency may not qualify. Under authorities where there is more discretion afforded to the President and agencies to define “emergency,” those seeking to challenge agency actions based on the fact that the underlying “emergency” does not actually exist may face some headwinds. In Center for Biological Diversity v. Trump, for instance, Judge Trevor McFadden dismissed challenges to President Trump’s first-term declaration under the National Emergencies Act of an emergency at the U.S.-Mexico border. The court rejected the plaintiff’s argument that “the Court can invalidate an otherwise lawful [emergency declaration] if the reasons justifying that action were a ‘sham’” as a political question where the National Emergencies Act provides no standards by which a court can evaluate the President’s motivations. At the same time, the court acknowledged that an inquiry into the basis of the emergency declaration would be permissible under arbitrary and capricious review under the Administrative Procedure Act. Following this line of reasoning, it is possible that, while agency authority that is statutorily predicated solely on a presidential declaration of emergency (e.g., 43 U.S.C. § 1341) may be relatively insulated, agency authority that requires the agency to find an emergency, where the agency relies exclusively on the Executive Order, may not be.

There are, of course, legitimate grid reliability challenges to tackle, such as those brought on by increased extreme weather events caused by climate change. But evidence suggests that current energy supply and price conditions simply do not constitute a national emergency. And not even an Executive Order can change that.