Donald Trump’s energy emergency will likely end up in court

The Biden–Trump Environmental Law: Expectations for Trump’s Day-One Energy Emergency or His South Border Emergency Declaration in 2020

On his first day in office, President Trump has signed a slew of executive orders that will set the United States on a radically different environmental path from the Biden administration. The executive orders and memos are the first steps to fulfill a number of Trumps promises, including withdrawing from the Paris Agreement and drilling more oil and natural gas.

This executive order instructs the US Ambassador to the United Nations to submit formal notification that the US is withdrawing from the Paris Agreement under the UN Framework Convention on Climate Change. The Paris Agreement is a document signed in September of 2016 that commits countries to reducing greenhouse emissions and submit updates on their plans over time.

In his first term, Trump also withdrew the US from the Paris Agreement, although the terms of the agreement meant that the withdrawal did not take place until November 2020. In one of his very first acts as president, Joe Biden had the US rejoin the Paris Agreement. The US will have to leave the Agreement for at least a year.

While Trump’s day-one executive orders are far-reaching, it’s not yet clear how they will be implemented or how quickly they will be felt. When Trump ordered the travel ban in January of last year it was challenged by courts, because they said it appeared to violate the US Constitution.

“We don’t have any case law regarding emergencies in the United States, when they are appropriate and when they are not,” says Dayton, the director of governance at the Washington D.C. based Niskanen Center. He expects either Trump’s energy emergency or his most recent southern border emergency declaration will face a legal challenge.

Trump used the National Emergencies Act to build a wall along the U.S. border in 2019. This gives the President more power to sidestep bureaucratic processes and public notifications. A Brennan Center analysis “identified 137 statutory powers that may become available to the president when he declares a national emergency.”

In this case those powers include suspending some environmental regulations under landmark laws such as the Endangered Species Act and speeding up energy project approval processes.

But in defining what constitutes “energy” Trump left out two renewable forms – wind and solar power – which were a particular focus for the Biden administration’s ambitious climate policies. Together they comprise more than 14% of the country’s electricity generation.

“It’s striking that the emergency he seems to be declaring, is one of a lack of fossil fuel production,” says Sam Sankar, an attorney and senior leader with Earthjustice. He says that’s strange as the US is producing more oil and gas than any other nation on the planet.

The climate-heating effects of burning fossil fuels are not mentioned in Trump’s order. It says Americans are hurting from high energy prices. It says an imminent and growing threat is the United States’ prosperity and national security because of inadequate energy supplies.

To fix that, Trump wants to cut regulations and speed up approval processes to deploy more oil drilling rigs, build more pipelines, and bring more power plants onto the grid.

Can Congress challenge the National Emergencies Act? Theoretical Aspects of the Inflation Reduction and Climate Change Acts and Their Implications

Challenges from this emergency declaration could possibly go to the Supreme Court. Answers to questions regarding the National Emergencies Act will be provided by that.

litigation is one of the few checks that may come on President Trump’s emergency powers. That won’t happen until agencies determine what options are available.

“You can’t challenge presidential statements or orders any more than you can challenge presidential speeches,” Sankar says, “So what matters is when things happen on the ground that actually affect people.”

If the Trump administration stopped paying funds that were obligated under the Inflation Reduction Act, he said, it could be an example. Hundreds of billions of dollars in incentives were given to encourage technologies that reduce or eliminate greenhouse gases.

Dayton doesn’t think it’s appropriate for presidential emergency declarations to handle complicated problems like energy production, climate change or immigration.

Dayton believes that the presidency shouldn’t be invested with this magic wand and say we can do everything without a debate.