First 100 Days: Energy Emergency Orders

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In brief...

Since the start of his second administration, President Trump has sought to use emergency powers to expedite energy and grid infrastructure development. Whereas previous presidents have used tools such as the strategic petroleum reserve and the elimination of price caps to increase the availability of fuel during emergency periods, President Trump has instead focused on modifying permitting and regulatory requirements to ease construction of energy infrastructure. In changing the scope and application of emergency powers, the administration has introduced new questions about the legal durability of long-established permitting frameworks, the role of states in the energy system, and the balance between efficiency and the environment during the environmental permitting process.

Emergency Powers and Permitting Reform

As part of the administration’s energy emergency, EO 14156, Declaring a National Energy Emergency, activates emergency powers to streamline environmental permitting procedures across multiple statutes. The stated goal of the order is to ensure a “reliable, diversified, and affordable supply of energy” and to mitigate the “threat to the American people from high energy prices.” Importantly, the order is focused exclusively on traditional energy sources including “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals” but not wind or solar, which must still undergo non-emergency permitting requirements.

Among other provisions, the order directs the Army Corps of Engineers (Corps) to use emergency powers under 33 CFR § 325.2 to expedite permits under Section 404 of the Clean Water Act (CWA), Section 10 of the Rivers and Harbors Act, and Section 103 of the Marine Protection, Research, and Sanctuaries Act for certain projects. These permits regulate the discharge of dredged material into wetlands, waterways, and the ocean, making them key to the oversight of large infrastructure projects. By relying on emergency powers to expedite the Corps’ permitting procedures, the order will raise questions over whether these actions fall within the scope of the emergency authorities of the Corps’ permitting statutes. Indeed, the Corps may only activate emergency permitting powers when there is an “unacceptable hazard to life, a significant loss of property, or an immediate, unforeseen, and significant economic hardship if corrective action requiring a permit is not undertaken within a period less than the normal time needed to process the application under standard procedures.”

Yet the conditions cited in EO 14156, namely rising energy prices, are arguably neither immediate nor unforeseen, and thus may not satisfy the aforementioned regulatory standard. This raises an important question related to the order. Is the United States experiencing an energy emergency? When emergency powers have been used to address energy crises in the past, they have typically been related to an acute supply disruption. During the Nixon administration, Congress and the President worked together to pass the Emergency Petroleum Allocation Act which authorized broad market controls following supply disruptions brought on by the Organization for Arab Petroleum Exporting Countries (OAPEC) imposing an oil embargo on the United States. During the Bush administration, a regional emergency was declared following Hurricane Katrina, which allowed for the release of oil from the Strategic Petroleum Reserve and a Jones Act waiver to ease transportation of petroleum between US ports. In contrast, the present declaration hinges on energy price levels that appear relatively stable by historical standards and are not related to one specific event. As of January 2025, when President Trump assumed office, the national average gasoline price was $3.196, virtually unchanged from $3.197 a year prior and down from $3.45 in January 2023. Similarly, the price of West Texas Intermediate Crude Oil was $73.95 per barrel in January 2025, compared to $73.81 in January 2024 and $74.04 in January 2023.

Even if these conditions required emergency measures to produce additional energy, the administration’s decision to simultaneously withdraw permits from projects outside the traditional energy sources listed above, as they did in a separate presidential memorandum, would undermine the stated goal of decreased energy prices. The goal of energy independence is only furthered by a more diverse set of energy sources, rather than limiting it to fossil fuels and a small set of burgeoning technologies. Moreover, legally durable reforms will necessarily mean a consistent application across project types rather than selective interventions to promote specific industries. Indeed, a permitting system shaped by changing political priorities, rather than a stable and consistent regulatory framework, will lead to greater uncertainty and undermine bipartisan goals of regulatory clarity in the permitting process and financially sustainable energy prices.

Beyond the broader question of whether an energy emergency exists and the proper approach to permitting reform, the specific use of emergency permitting authorities raises additional questions about whether the application of such powers at a national level, as opposed to site-specific and time-limited projects, is an appropriate use of these powers and aligned with the design of the Corps’ permitting statutes. While there is no hard-and-fast rule for the application of these emergency statutes, the Corps’ Fort Worth District’s emergency permitting guidance offers hypothetical scenarios such as a flood, hurricane, or bridge collapse due to a barge strike, events far more time and geographically specific than a nationwide energy affordability crisis. In other words, permitting one single energy project will not solve a nationwide energy crisis, thereby calling into question whether the construction of any one individual energy project qualifies as a “corrective action” to create an “affordable supply of energy”, as is required by the statute.  This will leave these emergency orders in a legally vulnerable place, which may lead to long-lasting litigation, only extending project timelines further than the previous status quo scenario.

Federal-State Tensions and Legal Vulnerabilities

Importantly, even if the emergency threshold is met, project developers and the government may still encounter opposition under Section 401 of the CWA, which authorizes states and tribes to approve, condition, or deny federal permits. In the past, Section 401 has been invoked to block projects that states and tribes consider to be controversial. For example, in 2020, the state of New York denied a Section 401 permit for the Northeast Supply Enhancement natural gas pipeline because of concerns that the project would “result in significant water quality impacts…and would disturb sensitive habitats.” Importantly, invoking this authority can be done irrespective of the receipt of other federal permits, as New York also did to block a pipeline from the Marcellus Shale into the state that had already successfully completed FERC’s National Environmental Policy Act (NEPA) review. These powers, however, are not frequently invoked during emergency periods and thus it is unclear whether states or the federal government will have supremacy should such a project end up in court.

In addition to expediting the Corps’ permitting requirements, the order also authorizes the use of emergency consultation procedures under the Endangered Species Act (ESA). The emergency provision of the ESA allows informal consultations during emergencies involving “acts of God, disasters, casualties, national defense or security emergencies,” with formal consultation to be initiated once the emergency conditions are under control. Informal consultations, which are typically used to determine whether an agency’s actions are “likely to adversely affect listed species or critical habitat,” would allow agencies to undergo a shorter, less-intensive process that typically lasts about 13 days, significantly less than the 90-day timeline for formal consultations.

The President also issued EO 14154, Unleashing American Energy (EO 14154), another order that addresses permitting barriers for traditional energy sources. The order directs agency heads to review all existing regulations, guidance documents, and policies to identify provisions that impose “undue burdens” on oil, natural gas, coal, hydropower, biofuels, critical minerals, and nuclear energy. Although EO 14154 is not itself a formal emergency declaration, it directs agency heads to use emergency authorities for projects deemed essential to the national economy or security.

The order also addresses permitting through the NEPA. Specifically, it instructs the Chair of the Council on Environmental Quality (CEQ) to propose rescinding NEPA implementation regulations codified under 40 CFR § 1500 and to develop new agency implementation guidance. Shortly after the order was issued, CEQ promulgated an interim final rule (IFR) with a 30-day comment period that rescinded the prior regulations under 40 CFR 1500-1508 and issued guidance directing agencies to promulgate new NEPA procedures consistent with EO 14154, the framework from the previously rescinded 2020 NEPA rule, and a generally more constrained approach to the consideration of environmental justice, cumulative effects, and the range of alternatives analyzed. The guidance further noted that until new rules are promulgated, agencies should “follow their existing practices…consistent with the text of NEPA, E.O. 14154, and this guidance.”

However, this directive may conflict with the recent ruling in Iowa v. CEQ, which vacated the Biden administration’s Phase II regulations and concluded that agencies should follow “the status quo…version of NEPA in place on June 30, 2024”, referring to the Phase I rules issued earlier in the Biden administration. In other words, the interim guidance issued by CEQ recommends that agencies adhere to a more fast-tracked version of NEPA compared with the more rigorous requirements from the courts. Further, it is important to note that the order did not invoke NEPA emergency authorities. This is likely because the rule that allowed CEQ to establish emergency arrangements with agencies was rescinded as part of the IFR. Thus, any attempt to expedite NEPA review under emergency procedures would have to come from new agency rulemakings.^[1]

The Department of Interior already responded to the CEQ guidance, publishing its plans for alternative arrangements to comply with the energy emergency order. Under these new procedures, environmental reviews for eligible energy projects will be significantly expedited, with environmental assessments completed in under 14 days and environmental impact statements in under 28 days. The plans substantially reduce opportunities for public participation. For projects likely to have significant impacts, agencies may limit public comment periods to as little as 10 days and are not required to publish a draft environmental impact statement before issuing a final decision. For projects not likely to have significant impacts, no public comment is required at all before finalizing agency actions. This is a departure from standard NEPA processes, as it significantly curtails public engagement. It also draws a sharp contrast with previous emergency procedures, which required a full environmental review following the end of the emergency period.

The current administration’s use of emergency powers also extends to the regulation of electric grid operations. EO 14262, Strengthening the Reliability and Security of the United States Electric Grid, builds upon the emergency declaration made in EO 14156 by directing the Department of Energy (DOE) to exercise its emergency authorities under Section 202 of the Federal Power Act. Specifically, the order requires DOE to expedite the review of applications from electric generation resources seeking to operate at maximum capacity. It also empowers the DOE Secretary to prohibit bulk power systems over 50 megawatts from leaving the grid or switching fuel sources if such changes would reduce generating capacity.

This diverges from the previous applications of Section 202, which typically focused on short-term emergencies. For example, Section 202 was invoked during the 2000 California energy crisis to maintain grid stability and during the rolling blackouts following Hurricanes Rita and Katrina to authorize emergency generation and transmission activities. In both cases, the emergency orders were narrowly defined and time-limited. By contrast, EO 14262 promotes the use of these powers as an ongoing grid management tool, thereby changing the use of Section 202 from a safeguard to a more routine tool for energy policy.

This change has important implications for the division between federal and state regulators. Historically, decisions concerning the construction, operation, and retirement of electric generation facilities have been given to state public utility commissions, which consider matters of reliability, cost, and environmental impacts. By authorizing the DOE Secretary to preempt state decisions regarding plant retirements and fuel source conversions, EO 14262 changes the areas of jurisdiction between federal and state energy regulators. This raises the potential for conflict, with utilities potentially compelled to maintain uneconomic or environmentally noncompliant facilities that state regulators have approved for closure or repowering.

Governance and Policy Implications

At a high level, reducing energy prices is a legitimate policy goal, however, it must be balanced with the foundational purposes of the permitting system. Indeed, environmental protection and public health are not ancillary considerations but a central statutory requirement in laws such as the CWA, ESA, NEPA, and others. Similarly, ensuring grid reliability requires careful long-term planning and coordination between state and federal entities rather than emergency interventions that prioritize short-term capacity without considering broader system resilience and state-wide energy goals.

Moreover, by invoking these emergency procedures, the administration reduces opportunities for public input, which is a key feature of environmental governance that helps ensure transparency, accountability, and more legally durable decisions. Reforms that prioritize expediency over substantive environmental review, grid planning, and public participation risk not only weakening statutory protections but also expose projects to prolonged legal battles making such investments only more resource intensive. Durable permitting reform must apply consistently across all project types, safeguard environmental standards, incorporate meaningful public engagement, and respect the complex governance structures essential to maintaining a secure and resilient energy system.