A coal barge travels up the Kanawha River, passing the DuPont chemical plant. (Andrew Lichtenstein/Corbis via Getty Images)

President Trump's executive order on "energy independence," annotated by an environmental law expert

by Emily Hammond on March 29, 2017

This executive order is designed to do two key things: first, to undo the Obama administration’s significant achievements in climate policy — appealing to the minority of Americans who share President Trump’s view that climate change is a “hoax” and agree with his budget chief’s pronouncement that it is a “waste of your money.” And second, to prop up the oil, gas, and coal industries at the expense of not only climate change mitigation but also clean air, water, and land, and wildlife and natural resources.

Some of the highlights from the order include:

• Revoking several Obama executive orders and memos related to his signature climate action plan

• Instructing all agencies to initiate the process of identifying and rescinding any rules or policies implementing the climate action plan

• Instructing the Environmental Protection Agency to begin the process of unraveling the Clean Power Plan, which set standards for reducing carbon dioxide emissions from power plants

• Instructing the Department of Interior to begin the process of unraveling commonsense rules for oil and gas extraction on federal land, including national parks

• Lifting a moratorium on new coal leasing on federal lands (existing leases were not affected) while the government assessed environmental and economic issues associated with the leasing program

Notably missing from the order is any mention of the United States’ commitment under the Paris climate agreement to reduce emissions by 26 to 28 percent below 2005 levels by 2025. But there’s no doubt that Trump’s insistent denial of climate change will make it much harder to keep our commitment, and represents a major setback for keeping global temperatures away from a catastrophic tipping point.

Also missing from the order is any connection to job creation, beyond the rhetorical. Well before the Obama climate action plan, market forces had already dealt a serious blow to coal’s economic prospects. Natural gas’s low prices enabled it to become a direct competitor of coal in the electric sector, and the two now directly compete. To the extent that Trump’s executive order eases regulation on the extraction of natural gas, he has only pressed these market forces harder against coal.

It is well within the executive power to depart from prior administrations’ policy preferences. But in implementing those policy changes, agencies must provide reasonable explanations for the changes that are consistent with their “enabling statutes” and missions. Climate change presents a particularly sticky problem in this regard, because it is backed by an overwhelming scientific consensus. Expect this executive order to be a rallying cry for the upcoming Earth Day and March for Science protests, and count on numerous legal challenges.

(Emily Hammond is a professor of law at the George Washington University specializing in energy law, environmental law, and administrative law. Below is the full text of the executive order, with her annotations.)

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EXECUTIVE ORDER

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PROMOTING ENERGY INDEPENDENCE AND ECONOMIC GROWTH1

The title’s tired phrasing is ironic because it ignores widely accepted attributes of “energy independence.” Dating back to at least the Carter administration (and even including the George W. Bush administration), the concept of energy independence has included the need to promote renewable energy and environmentally sound energy policies consistent with economic growth. In contrast, this executive order aggressively puts fossil fuels above everything else.

Emily Hammond,

        By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

        Section 1.  Policy.  (a)  It is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.  Moreover, the prudent development of these natural resources is essential to ensuring the Nation's geopolitical security.

         (b)  It is further in the national interest to ensure that the Nation's electricity is affordable, reliable, safe, secure, and clean, and that it can be produced from coal, natural gas,1 nuclear material, flowing water, and other domestic sources, including renewable sources.

Fossil-fueled electricity scores poorly on the “clean” metric — in case anyone was wondering. And that’s not just in terms of greenhouse gases. Fossil fuels release toxic pollutants such as mercury and other dangerous pollutants such as particulate matter that contribute to hundreds of thousands of deaths each year.

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        (c)  Accordingly, it is the policy of the United States that executive departments and agencies (agencies) immediately review existing regulations that potentially burden the development or use of domestically produced energy resources1 and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.

A major struggle for implementing this broad language lies in the fact that domestically produced energy resources compete with one another. It becomes more apparent in later language in this executive order that the intent is to make fossil fuels the big winners.

Emily Hammond,

        (d)  It further is the policy of the United States that, to the extent permitted by law, all agencies should take appropriate actions to promote clean air and clean water for the American people1 , while also respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.

Clean land is oddly missing from this list. So are wildlife and natural resources — perhaps because Section 7(b), below, will harm them.

Emily Hammond,

        (e)  It is also the policy of the United States that necessary and appropriate environmental regulations comply with the law, are of greater benefit than cost, when permissible1 , achieve environmental improvements for the American people, and are developed through transparent processes that employ the best available peer-reviewed science and economics.2

1

Environmental statutes such as the Clean Air Act and Clean Water Act already regularly require agencies to engage in some kind of cost-conscious decision-making, though the specifics vary. Other executive orders also require a cost-benefit analysis before major rules can be promulgated. Finally, the Supreme Court has instructed that agencies typically should consider whether regulations do more good than harm. In other words, though this language may be an attempt to score political points, it’s nothing new.

Note that in a rare exception, one provision of the Clean Air Act forbids the EPA to consider costs when setting health-based standards for criteria pollutants like particulate matter and lead. That requirement makes sense, because the purpose of the provision is to protect human health and welfare. Notably, however, costs are considered when EPA and the states determine compliance approaches. The “when permissible” language presumably does not attempt to change this standard.

Emily Hammond,

2

The best available peer-reviewed science and economics literatures are clear that climate change is real and causes significant economic harm.

Emily Hammond,

        Sec. 2.  Immediate Review of All Agency Actions that Potentially Burden the Safe, Efficient Development of Domestic Energy Resources.  (a)  The heads of agencies shall review1 all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.2  Such review shall not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth in section 1 of this order.

1

Trump’s executive orders have less than ideal clarity regarding their applicability. This language is vague as to whether it applies to all agencies (extending, for example, to commissions like the Federal Energy Regulatory Commission) or just the executive agencies that have traditionally been subject to executive orders (meaning single-headed agencies like the EPA and the Department of Interior). In a guidance document issued by the acting administrator of the Office of Information and Regulatory Affairs (OIRA) after similar unclear language appeared in the executive order of January 30, 2017, that proposed that two regulations must be cut for every new one, that agency clarified that its scope was limited to executive agencies. Presumably the intent here is similar.

Emily Hammond,

2

When he announced the executive order on March 28, Trump stated that he was “leveling the playing field” for energy sources. This language instead provides a pecking order, with oil, natural gas, and coal at the head of the line. Another point of note: None of the language here explicitly refers to climate change–related regulatory activities. Presumably, Trump intended the reach of this order to go further than climate. An aggressive interpretation would enable agencies to roll back any environmental regulation that arguably burdened fossil fuels, including more numerous regulations for air and water pollution. We’ll need to keep a close eye on how this mandate operates in practice.

Emily Hammond,

        (b)  For purposes of this order, "burden" means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.1

Costs can’t be considered without also looking at benefits, as Section 1(c) already indicated. But be sure to watch whether the administration forgets that point.

Emily Hammond,

         (c)  Within 45 days of the date of this order, the head of each agency with agency actions described in subsection (a) of this section shall develop and submit to the Director of the Office of Management and Budget (OMB Director) a plan to carry out the review required by subsection (a) of this section.1 The plans shall also be sent to the Vice President, the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Chair of the Council on Environmental Quality.  The head of any agency who determines that such agency does not have agency actions described in subsection (a) of this section shall submit to the OMB Director a written statement to that effect and, absent a determination by the OMB Director that such agency does have agency actions described in subsection (a) of this section, shall have no further responsibilities under this section.

In other words, keep an eye out for agencies’ plans in early May.

Emily Hammond,

Ron Sach-Pool/Getty Images

        (d)  Within 120 days of the date of this order, the head of each agency shall submit a draft final report detailing the agency actions described in subsection (a) of this section to the Vice President, the OMB Director, the Assistant to the President for Economic Policy, the Assistant to the President for Domestic Policy, and the Chair of the Council on Environmental Quality.  The report shall include specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production.

This is an incredibly burdensome deadline for many of the agencies that will be affected, especially the EPA and the Department of Interior. If agencies divert their scarce resources toward such reports, it will be to the detriment of the clean air and water that this order insists it will protect.

Emily Hammond,

        (e)  The report shall be finalized within 180 days of the date of this order, unless the OMB Director, in consultation with the other officials who receive the draft final reports, extends that deadline.

        (f)  The OMB Director, in consultation with the Assistant to the President for Economic Policy, shall be responsible for coordinating the recommended actions included in the agency final reports within the Executive Office of the President.

        (g)  With respect to any agency action for which specific recommendations are made in a final report pursuant to subsection (e) of this section, the head of the relevant agency shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding, those actions, as appropriate and consistent with law.  Agencies shall endeavor to coordinate such regulatory reforms with their activities undertaken in compliance with Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs).1

This refers to the two-for-one executive order requiring that agencies rescind two rules for every one issued, and that they offset any new costs from new rules by rescinding rules and eliminating those rules’ costs. As I argued in recent testimony to the House Committee on Energy and Commerce subcommittee on the environment, the two-for-one executive order brings irrationality to the administrative process and threatens to grind agency activity to a halt: There is a rationality problem in assuming that regulations are interchangeable, and the requirements for issuing new rules are so difficult to meet that agencies will be prevented from addressing serious problems that need new rules. Perhaps a silver lining (though small) for this executive order is that if climate rules are rescinded, it gives the EPA some flexibility to continue to update other rules necessary to protect air, water, and land. For example, rescinding two climate rules presumably opens the door to issuing a new water quality rule. If you’re skeptical, you should be: It is not at all clear that the Trump EPA would really work to tighten environmental regulations. The point here is that it’s a possible path for compliance with the two-for-one order.

Emily Hammond,

        Sec. 3.  Rescission of Certain Energy and Climate-Related Presidential and Regulatory Actions.  (a)  The following Presidential actions are hereby revoked1 :

The President has authority to revoke prior administrations’ executive orders. Whether the agencies have authority to do everything Trump asks in this EO is a different question. More on this below.

Emily Hammond,

                (i)    Executive Order 13653 of November 1, 2013 (Preparing the United States for the Impacts of Climate Change);1

This executive order directed federal agencies to prepare for climate change impacts and assist states and localities with resilience efforts. It is indescribably shortsighted to eliminate this kind of planning.

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                (ii)   The Presidential Memorandum of June 25, 2013 (Power Sector Carbon Pollution Standards);1

This memorandum called for carbon emission reductions from fossil-fueled power plants and provided strong presidential support for the Clean Power Plan.

Emily Hammond,

                (iii)  The Presidential Memorandum of November 3, 2015 (Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment)1 ; and

The first sentence in this memorandum was: “We all have a moral obligation to the next generation to leave America's natural resources in better condition than when we inherited them.” The document set a policy of developing natural resources in such a way as to minimize harmful effects to land, water, and wildlife. It also encouraged private investment in natural resource restoration — the same kind of public-private partnerships that Trump claims to embrace.

Emily Hammond,

                (iv)   The Presidential Memorandum of September 21, 2016 (Climate Change and National Security)1 .

Trump should talk with his own secretary of defense, Jim Mattis, who testified before the Senate Armed Services Committee that climate change is a national security threat.

Emily Hammond,

What’s missing from this list of revoked memos and orders? Among the notable prior actions that appear to remain in place for now are:

• EO 13,514, Federal Leadership in Environmental, Energy, and Economic Performance, which requires agencies to set emissions standards for themselves

• EO 13,547, Stewardship of the Ocean, Our Coasts, and the Great Lakes, which sets an adaptive management policy for understanding the impacts of climate change and ocean acidification

• EO 13,677, Climate-Resilient International Development, which requires agencies involved in international development work to incorporate climate resilience considerations

• A memorandum aimed at ensuring that federal light-duty vehicles are powered by alternative fuels

Emily Hammond,

        (b)  The following reports shall be rescinded:

                (i)   The Report of the Executive Office of the President of June 2013 (The President's Climate Action Plan)1 ; and

This report outlined President Obama’s overall climate policy, much of which was further elaborated on in the other documents listed here.

Emily Hammond,

                (ii)  The Report of the Executive Office of the President of March 2014 (Climate Action Plan Strategy to Reduce Methane Emissions)1 .

Methane — the primary component of natural gas — is also released by landfills, agriculture, and coal mines. It has a much more harmful climate impact than carbon dioxide. Thus, developing a plan for curbing methane emissions was a key part of the climate action plan.

Emily Hammond,

 

        (c)  The Council on Environmental Quality shall rescind its final guidance entitled "Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews,"1 which is referred to in "Notice of Availability," 81 Fed. Reg. 51866 (August 5, 2016).

This guidance provided agencies with a set of tools for complying with the National Environmental Policy Act (NEPA) by accounting for the climate impacts of major federal actions. By revoking this guidance document, Trump is seemingly instructing agencies not to consider the climate ramifications of federal projects. But NEPA itself requires a full accounting of the environmental trade-offs associated with such projects, so it’s likely an agency that ignored obvious climate impacts would be vulnerable to a court challenge.

Emily Hammond,

        (d)  The heads of all agencies shall identify existing agency actions related to or arising from the Presidential actions listed in subsection (a) of this section, the reports listed in subsection (b) of this section, or the final guidance listed in subsection (c) of this section.  Each agency shall, as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding any such actions,1 as appropriate and consistent with law and with the policies set forth in section 1 of this order.

This provision mops up behind Trump’s revocations and rescissions: Agencies are expected to initiate processes to rescind any rules or policies that they developed pursuant to Obama’s climate action plan.

Emily Hammond,

        Sec. 4.  Review of the Environmental Protection Agency's "Clean Power Plan" and Related Rules and Agency Actions.1 (a)  The Administrator of the Environmental Protection Agency (Administrator) shall immediately take all steps necessary to review the final rules set forth in subsections (b)(i) and (b)(ii) of this section, and any rules and guidance issued pursuant to them, for consistency with the policy set forth in section 1 of this order and, if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.  In addition, the Administrator shall immediately take all steps necessary to review the proposed rule set forth in subsection (b)(iii) of this section, and, if appropriate, shall, as soon as practicable, determine whether to revise or withdraw the proposed rule.

Here we go: This section is the centerpiece of the executive order, directing EPA to take immediate steps to reevaluate the Clean Power Plan. Trump did not need to use an executive order to do this, but raising the issue in this way is designed to gain him much-needed political capital. The real place to watch is the EPA: Its likely first step will be to issue a notice of proposed rulemaking, but it will take a year or more to develop a record, undergo notice and comment, and issue a final rule that rescinds the Clean Power Plan. Legal challenges will tie up the issue longer than Trump will be president.

Emily Hammond,

        (b)  This section applies to the following final or proposed rules:

                (i)        The final rule entitled "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," 80 Fed. Reg. 64661 (October 23, 2015) (Clean Power Plan)1 ;

As noted, this is the Clean Power Plan. An extraordinary rulemaking accomplishment relying on thousands of pages of supporting documentation, its basic approach is to set standards for states to follow in achieving carbon dioxide emission reductions from the power sector’s existing plants. It contemplates general trends of improved efficiency at coal-fired power plants, switching from coal to natural gas for fueling electricity, and ultimately moving from natural gas–fired power to renewables. The Clean Power Plan rests on both legal interpretations and factual findings. The agency will have a much harder time rescinding the rule by attempting to undo facts (including the finding that greenhouse gases endanger public health and welfare) than by changing its legal interpretations. Of note: The Clean Power Plan is currently stayed pending litigation.

Emily Hammond,

                (ii)   The final rule entitled "Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units,"1 80 Fed. Reg. 64509 (October 23, 2015);[26] and

EPA issued these New Source Standards on the same day as the Clean Power Plan. As the title suggests, this rule sets guidelines for new coal- and natural gas–fired power plants. It is currently in litigation as well.

Emily Hammond,

                (iii)  The proposed rule entitled "Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations; Proposed Rule,"1 80 Fed. Reg. 64966 (October 23, 2015).

This proposed rule demonstrated EPA’s suggested approach to Clean Power Plan compliance. As a proposed rule, it may be easier to withdraw this one than the other two; it should be less vulnerable to a legal challenge.

Emily Hammond,

 

        (c)  The Administrator shall review and, if appropriate, as soon as practicable, take lawful action to suspend, revise, or rescind, as appropriate and consistent with law, the "Legal Memorandum Accompanying Clean Power Plan for Certain Issues1 ," which was published in conjunction with the Clean Power Plan.

This document provides the legal interpretations necessary for implementation of the Clean Power Plan. It is almost certain that EPA will issue a new legal interpretation in which it concludes that it does not have jurisdiction to regulate greenhouse gases under the relevant part of the Clean Air Act. And it is likely that a reviewing court would be deferential to the new interpretation.

Emily Hammond,

        (d)  The Administrator shall promptly notify the Attorney General of any actions taken by the Administrator pursuant to this order related to the rules identified in subsection (b) of this section so that the Attorney General may, as appropriate, provide notice of this order and any such action to any court with jurisdiction over pending litigation related to those rules, and may, in his discretion, request that the court stay the litigation or otherwise delay further litigation,1 or seek other appropriate relief consistent with this order, pending the completion of the administrative actions described in subsection (a) of this section.

These passages address the fact that the Clean Power Plan and New Source Standards are currently tied up in litigation. Trump likely hopes that the courts will stay their consideration of the rules pending administrative review, and ultimately dismiss the cases as moot if the Obama-era rules are rescinded. But the courts will have plenty of work after that — reviewing the Trump administration’s attempted demolition of rational climate policy.

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        Sec. 5.  Review of Estimates of the Social Cost of Carbon, Nitrous Oxide, and Methane for Regulatory Impact Analysis.1  (a)  In order to ensure sound regulatory decision making, it is essential that agencies use estimates of costs and benefits in their regulatory analyses that are based on the best available science and economics2 .

1

What does this really do? It eliminates the “social cost of carbon,” which was developed by a multi-agency task force during the Obama administration as a way to monetize the impacts of climate change when agencies undertake cost-benefit analyses. Despite some argument over whether the price point is too high or too low, there is broad consensus that climate change does have economic impacts.

As noted above, executive agencies must undertake cost-benefit analyses for their major rules. This provision seeks to shift the standards for such review back to the climate dark ages — back to the George W. Bush administration’s head-in-the-sand approach to climate change. The agencies’ cost-benefit analyses for compliance with the relevant executive orders are not judicially reviewable, so a direct challenge to this provision is near impossible.

Still, as also noted above, agencies already often weigh costs and benefits as part of their statutory requirements. If an agency now fails to account for the social cost of carbon but had done so in the past, it might be vulnerable to a legal challenge. After all, how can any agency rationally claim that climate costs are immaterial?

Emily Hammond,

2

That’s right! Which means they should consider the economic impacts of climate change.

Emily Hammond,

        (b)  The Interagency Working Group on Social Cost of Greenhouse Gases (IWG), which was convened by the Council of Economic Advisers and the OMB Director, shall be disbanded, and the following documents issued by the IWG shall be withdrawn as no longer representative of governmental policy:1

All of the documents on this list support the social cost of carbon methodology and numeric values.

Emily Hammond,

                (i)    Technical Support Document:  Social Cost of Carbon for Regulatory Impact Analysis Under Executive Order 12866 (February 2010);

                (ii)   Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (May 2013);

                (iii)  Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (November 2013);

                (iv)   Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (July 2015);

                (v)    Addendum to the Technical Support Document for Social Cost of Carbon:  Application of the Methodology to Estimate the Social Cost of Methane and the Social Cost of Nitrous Oxide (August 2016); and

                (vi)   Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (August 2016).

        (c) Effective immediately, when monetizing the value of changes in greenhouse gas emissions resulting from regulations, including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates, agencies shall ensure, to the extent permitted by law, that any such estimates are consistent with the guidance contained in OMB Circular A-4 of September 17, 20031 (Regulatory Analysis), which was issued after peer review and public comment and has been widely accepted for more than a decade as embodying the best practices for conducting regulatory cost-benefit analysis.

Here is where Trump explicitly tells agencies to go back to Bush’s methods of cost-benefit analysis, erasing the analytical gains brought by the “social cost of carbon” methodology.

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        Sec. 6.  Federal Land Coal Leasing Moratorium.  The Secretary of the Interior shall take all steps necessary and appropriate to amend or withdraw Secretary's Order 3338 dated January 15, 2016 (Discretionary Programmatic Environmental Impact Statement (PEIS) to Modernize the Federal Coal Program)1 , and to lift any and all moratoria on Federal land coal leasing activities related to Order 3338.  The Secretary shall commence Federal coal leasing activities consistent with all applicable laws and regulations.2

1

Contrary to how this moratorium has been described in some press reports, it extended only to new coal leases on federal land, and only until after a full environmental review of the government’s decades-old leasing program. (Incidentally, the review was meant to address not just climate implications but also the mechanics of leasing — things like the rate of return to taxpayers and transparency in the competitive process for obtaining the leases.) Lifting the moratorium will permit new leases to move forward, but see the next point about what to expect.

Emily Hammond,

2

Key “applicable laws and regulations” here are those related to the National Environmental Policy Act (NEPA). Coal leases require a NEPA analysis. Now that the Department of Interior has initiated a NEPA review of the leasing program, it has built a record regarding the climate and economic aspects of coal leasing. When Interior starts issuing new leases, it will be hard-pressed to explain why the climate and economic considerations are no longer relevant.

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        Sec. 7.  Review of Regulations Related to United States Oil and Gas Development.  (a)  The Administrator shall review the final rule entitled "Oil and Natural Gas Sector:  Emission Standards for New, Reconstructed, and Modified Sources,"1 81 Fed. Reg. 35824 (June 3, 2016), and any rules and guidance issued pursuant to it, for consistency with the policy set forth in section 1 of this order and, if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.

As with the Clean Power Plan, we can expect years of effort in reviewing and rescinding these rules and waiting out the litigation — perhaps extending into a future, more enlightened administration.

Emily Hammond,

        (b)  The Secretary of the Interior shall review the following final rules, and any rules and guidance issued pursuant to them, for consistency with the policy set forth in section 1 of this order and, if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules:1

Now it’s the Department of Interior’s turn to roll back its regulations. Far from being “out there” or boundary-pushing, many of these regulations are sensible and implement best practices for federal land that are already in place for private land under state jurisdiction. It’s hard to see how rescinding these rules will promote the clean air and water that Trump puts on a pedestal earlier in this executive order.

Emily Hammond,

                (i)        The final rule entitled "Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,"1 80 Fed. Reg. 16128 (March 26, 2015);

This sensible rule essentially adopted industry best practices for hydraulic fracturing on federal and Indian lands.

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                (ii)   The final rule entitled "General Provisions and Non-Federal Oil and Gas Rights1 ," 81 Fed. Reg. 77972 (November 4, 2016);

Another sensible rule, this one details requirements for exercising oil and gas rights on National Park Service land (meaning, ultimately, extracting those resources). The rule does nothing to halt extraction, but it does do things like protecting the surface water in our national parks and mitigating any harm to visitors.

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                (iii)  The final rule entitled "Management of Non‑Federal Oil and Gas Rights1 ," 81 Fed. Reg. 79948 (November 14, 2016);[40] and

This rule is similar to the one above but is directed at National Wildlife Refuge Systems land and intended to minimize the impacts on refuge resources and visitors.

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                (iv)   The final rule entitled "Waste Prevention, Production Subject to Royalties, and Resource Conservation1 [41]," 81 Fed. Reg. 83008 (November 18, 2016).

This Bureau of Land Management rule is directed at reducing waste from flaring natural gas that comes from oil and gas production activities. Again, it is a sensible rule that attempts to do for federal lands what many states already do for areas under their own jurisdiction. In other words, this rule promoted uniformity and best practices associated with flaring natural gas, and clarified the royalty accounting issues that arise from flaring.

Emily Hammond,

        (c)  The Administrator or the Secretary of the Interior, as applicable, shall promptly notify the Attorney General of any actions taken by them related to the rules identified in subsections (a) and (b) of this section so that the Attorney General may, as appropriate, provide notice of this order and any such action to any court with jurisdiction over pending litigation related to those rules,1 and may, in his discretion, request that the court stay the litigation or otherwise delay further litigation, or seek other appropriate relief consistent with this order, until the completion of the administrative actions described in subsections (a) and (b) of this section.

 As with the Clean Power Plan and New Source Rules above, the administration is hoping to ultimately moot the litigation — in other words, if the rules are rescinded, the courts may determine that there is nothing left to litigate.

Emily Hammond,

        Sec. 8.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

                        (i)   the authority granted by law to an executive department or agency, or the head thereof; or

How kind of the administration to acknowledge that it can’t change the agencies’ statutory mandates!

Emily Hammond,

                        (ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

        (b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

        (c)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity1 by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

In plain language: We can’t sue Trump for this executive order.

But we can scrutinize the agencies’ implementation of it, engage in their public processes, hold the administration to its transparency obligations — and, ultimately, sue to protect the climate.

Emily Hammond,

The latest text has been updated.

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