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President Issues Executive Orders Requiring 1 Year Sunset Dates On Existing Regulations Affecting Energy; Identifying Regulations Limiting Competition; Repealing ‘Unlawful’ Regulations

On April 9, the President issued two new executive orders requiring agencies to adopt one year sunset dates on any existing regulations affecting energy. A second order requires agencies to identify regulations that limit competition.

Executive Order - Sunset Dates

The President signed an executive order requiring 10 federal agencies and subagencies with regulations covering energy and energy production to adopt a regulation by September 2025 inserting a one year expiration dates on existing regulations and a five year expiration date on all new regulations.

If the regulations are not extended by the agencies before the expiration day, the energy regulations will expire.

[Note: States that administer federal permit programs adopt state laws and regulations covering activities regulated by the federal agencies and laws covered by this order.

[A good example is surface coal mining where Pennsylvania has adopted specific laws and regulations regulating this activity.

[However, in some programs like air quality, hazardous waste, safe drinking water, radiation protection, storage tanks and others, Pennsylvania chose to adopt many federal regulations by reference.

[So if the federal regulations disappear, so could Pennsylvania’s regulations.]

Agencies Covered

The agencies covered by the order included--

-- Environmental Protection Agency;

-- Department of Energy;

-- Federal Energy Regulatory Commission;

-- Nuclear Regulatory Commission;

-- Office of Surface Mining Reclamation and Enforcement

-- Bureau of Land Management

-- Bureau of Ocean Energy Management

-- Bureau of Safety and Environmental Enforcement;

-- Fish and Wildlife Service; and

-- US Army Corps of Engineers.

For the EPA and Army Corps of Engineers, within 30 days of the date of this order, the Administrator of the EPA and Secretary of the Army shall provide to the President, through the Director of the Office of Management and Budget, a list of statutes vesting EPA and ACE with regulatory authority that shall be subject to this order.

Laws Covered

Laws covered by the order--

Department of Energy--

Atomic Energy Act of 1954;

National Appliance Energy Conservation Act of 1987;

Energy Policy Act of 1992;

Energy Policy Act of 2005; and

Energy Independence and Security Act of 2007.

Federal Energy Regulatory Commission-

Federal Power Act of 1935;

Natural Gas Act of 1938; and

Powerplant and Industrial Fuel Use Act of 1978.

Nuclear Regulatory Commission--

Atomic Energy Act of 1954;

Energy Reorganization Act of 1974; and

Nuclear Waste Policy Act of 1982.

Office of Surface Mining & Reclamation--

Surface Mining Control and Reclamation Act of 1977 and any amendments thereto.

Bureau of Land Management--

Mining Act of 1872;

Federal Land Policy and Management Act of 1976; and

Energy Policy Act of 2005.

Bureau of Ocean Energy Management--

Outer Continental Shelf Act of 1953; and

Energy Policy Act of 2005.

Outer Continental Shelf Act of 1953 and any amendments thereto.

Fish & Wildlife Service--

Bald and Golden Eagle Protection Act;

Migratory Bird Treaty Act of 1918;

Fish and Wildlife Coordination Act of 1934;

Anadromous Fish Conservation Act of 1965;

Marine Mammal Protection Act of 1972;

Endangered Species Act of 1973;

Magnuson–Stevens Fishery Conservation and Management Act of 1976; and

Coastal Barrier Resources Act of 1982.

The President said zero-based regulation uses the bureaucracy against itself. If bureaucrats move slowly, the default is deregulation and free markets—not the sclerotic status quo.

Adding, zero-based regulation demolishes agency resistance against innovation. It forces agencies to reconsider every regulation, and justify it for the present day, making regulation more accountable to elections and the American people.

Click Here for a White House fact sheet.

Executive Order - Anti-Competitive Regulations

The President signed an executive order requiring agencies within 70 days, in coordination with the federal Federal Trade Commission and the US Attorney General, to identify “regulations that facilitate the formation of monopolies, create or impose unnecessary barriers to entry, or needlessly burden agency procurement.”

Agencies are also required to seek input from the public to identify regulations that need to be changed and/or repealed.

Any regulations identified as anti-competitive will be added on the Unified Regulatory Agenda for rescission or modification.

Click Here for a White House fact sheet.

Memorandum - Repeal Unlawful Regulations

The President signed a memorandum implementing Executive Order 14219 directing the repeal of regulations that are unlawful under 10 recent US Supreme Court decisions.

Among the court decisions are--

-- Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) overturned the Chevron doctrine. Accordingly, agencies are to repeal any regulation that is not consonant with the “single, best meaning” of the statute authorizing it. Agencies are also to repeal any regulation that was promulgated in reliance on the Chevron doctrine and that could be defended only by relying on Chevron deference.

-- West Virginia v. EPA, 597 U.S. 697 (2022) was a landmark ruling applying the Major Questions Doctrine, i.e., the principle that an agency cannot claim to discover vast delegations of power on an important issue in a statutory text that doesn’t clearly provide such authority. (Agencies cannot “seek to hide ‘elephants in mouseholes.’”) Accordingly, agencies must repeal any regulation promulgated in violation of the Major Questions Doctrine.

-- SEC v. Jarkesy, 603 U.S. 109 (2024) held that it violates the Seventh Amendment for agencies to adjudicate common-law claims in their in-house courts. Agencies accordingly must repeal any regulation authorizing enforcement proceedings that enable the agency’s courts to impose judgments or penalties that can only be obtained via jury trial in Article III Courts.

-- Michigan v. EPA, 576 U.S. 743 (2015) held that it violates the Administrative Procedure Act for an agency to promulgate regulations without properly considering the cost as well as the benefits. Agencies accordingly must repeal any regulation where the costs imposed are not justified by the public benefits, or where such an analysis was never conducted to begin with.

-- Sackett v. EPA, 598 U.S. 651 (2023) ended a twenty-year attempt by the EPA to enforce the Clean Water Act against landowners whose property was near a ditch that fed into a creek, which fed into a navigable, intrastate lake. Agencies accordingly must repeal any regulation inconsistent with a properly bounded interpretation of “waters of the United States.”

-- Ohio v. EPA, 603 U.S. 279 (2024) struck down an EPA plan under the Clean Air Act that the EPA had adopted after the scientific and policy premises undergirding it had been shown to be wrong. Agencies accordingly must repeal any regulation that does not sufficiently account for the costs it imposes, or for which foundational assumptions have changed and are no longer defensible.

-- Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) held that a law that forced landowners to admit union organizers onto their property violated the Takings Clause. Agencies accordingly must repeal any regulation inconsistent with a proper understanding of the Takings Clause, which protects far more than just real estate from being taken by the government without compensation.

Click Here for a White House fact sheet.

NewsClips - Expiration Dates:

-- E&ENews/Politico: President Hits Delete For Energy, Environmental Regulations

-- Utility Dive: President Directs FERC, Other Agencies To Add Sunsets To Energy-Related Regulations

-- Reuters: President's Order Sets New Expiration Dates On Existing Energy Rules

-- Scripps News: President Signs Orders To Cut Energy Regulations, Speed Defense Exports, Investigation Former Officials

-- Public Citizen: President Signs Executive Order to Cancel Protections For Clean Air, Water

-- White House Fact Sheet: President Makes America’s Showers Great Again

Related Articles This Week:

-- President Signs Executive Orders Directing US Attorney General To Take Action Against States Impeding Domestic Energy Production; Rescinds Policies Transition Away From Coal; Lifts Toxics Standards For Coal Power Plants [PaEN]

-- President Issues Executive Orders Requiring 1 Year Sunset Dates On Existing Regulations Affecting Energy; Identifying Regulations Limiting Competition [PaEN]

-- PJM Interconnection Supports Presidential Exemptions From Clean Air Act Standards Requested By 13,900 MW Of Electric Generation In PJM Region, Including Keystone And Conemaugh Power Plants In PA [PaEN]