Executive Branch Activity

New Guidance Clarifying Energy Executive Order

Last week, just four days before federal agencies’ initial plans were due to OMB, the White House issued a memo updating with more specifics as to how President Trump expects agencies to carry out his previously issued energy executive order (Executive Order 13783, “Promoting Energy Independence and Economic Growth”). As we previously reported, the EO directs agencies to identify regulations that would “burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy.” The EO also had requested the creation of responsive agency plans that were due last Friday, May 12, with full draft reports by July 26 and final reports on September 24, which are to be published in the Federal Register. 

The new guidance directs agencies to specifically reach out and “seek input” that would recommend agency actions “from entities significantly affected by Federal regulations, including state, local and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations.” The new guidance also calls on agencies to provide timeframes for when recommendations may likely be implemented, and to estimate potential cost savings and increased energy production from their actions.

Of note, for the first time, the new guidance also includes “renewable energy” as an energy source to be reviewed alongside the previously named energy sources of oil, natural gas, coal, and nuclear energy that could be affected by agency actions.

The new guidance also clarifies the “types of agency actions” President Trump expects to be reviewed.  These include, but are not limited to, those that specifically:

“(1) Affect the design and/or location of domestic energy production;

(2) Affect the design and/or location of drilling or mining of energy production resources; and

(3) Limit the use of certain sources of energy, such that the development of domestically produced energy resources from a certain sector may be negatively affected.”

Finally, the new guidance notes that “agency heads” will have the power to deem if an agency action rises to the level of consideration as a “potential burden” as one to mark for action to increase energy production. 

Legislative Branch Activity 

This Week’s Hearings

• On Wednesday, May 17, the House Committee on Natural Resources, Subcommittee on Federal Lands, will hold an oversight hearing titled “Seeking Better Management of America’s Overgrown, Fire-Prone National Forests.”

• On Wednesday, May 17, the House Committee on Foreign Affairs, Subcommittee on the Western Hemisphere, will hold a hearing titled “Energy Opportunities in South America.”

• On Thursday, May 18, the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, will hold a hearing titled “Building a 21st Century Infrastructure for America: Improving Water Quality through Integrated Planning.”

• On Thursday, May 18, the Senate Committee on Energy and Natural Resources will hold a hearing on the nomination of Mr. David Bernhardt to be Deputy Secretary of the Interior.

• On Thursday, May 18, the House Committee on Natural Resources, Subcommittee on Water, Power, and Oceans, will hold a hearing to discuss H.R. 2371, a bill that would require the Administrator of the Western Area Power Administration to establish a pilot project to provide increased transparency for customers, and the Water Rights Protection Act, a bill that would prohibit the conditioning of any permit, lease or other use agreement on the transfer of any water right to the US by the Secretaries of the Interior and Agriculture.

Regulatory Activity

WOTUS

Last week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers sent a letter to state governors soliciting comments as to how the agencies should rewrite the “Waters of the U.S.” (WOTUS) rule following President Trump’s February 28 executive order directing the agencies to revise the contested Obama Administration rule. State and local governments have until June 19 to provide comments. Following the delivery of the letters, EPA Administrator Scott Pruitt noted in an interview that the agency hopes to issue a new WOTUS regulation “sometime late this year or early next.”

RFS

Also last week, EPA submitted its proposed 2018 Renewable Fuel Standard (RFS) renewable volume obligations (RVO) to the White House for review. The White House is expected to complete the review within the next 90 days, but may expedite the review in order to allow EPA to issue the final rule by the deadline of November 30. The total RVO is expected to be 15 billion gallons of ethanol and the mandate reportedly does not address the contentious question of whether to change the point of obligation for complying with the program.