Understanding Trump’s executive order declaring a national energy emergency and its current implications
Contributed by Alex Prochaska and Marisa Del Turco, Jones Walker LLP
On January 20, 2025, President Donald Trump used his emergency powers to issue “Declaring a National Energy Emergency,” Executive Order 14156 (E.O. 14156 or E.O.). The E.O. directs federal agencies to use any existing emergency powers to “facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.”
For the purpose of the E.O., “energy and energy resources” is defined as “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, as defined by 30 U.S.C. 1606(a)(3).” Absent from this definition is wind and solar energy.
According to E.O. 14156, the president is invoking his authority under the Constitution, the National Emergencies Act (50 U.S.C. 1601 et seq.), and Section 301 of Title 3, United States Code. Through these powers, he is requiring that heads of executive departments and agencies by requiring the exercise of all emergency authorities available to them with the backing of the president for whatever actions may be necessary to reach this end, including the possible use of federal eminent domain power and the Defense Production Act (DPA) of 1950 (P.L. 81-774, 50 U.S.C. 4501 et seq.).
The authorities cited by the president and the purpose as explained in E.O. 14156 are all rooted in the Trump administration’s assessment that the “energy and critical minerals (‘energy’) identification, leasing, development, production, transportation, refining, and generation capacity” of the US are inadequate to meet domestic needs, resulting in the need for “a reliable, diversified, and affordable supply of energy to drive our Nation’s manufacturing, transportation, agriculture, and defense industries, and to sustain the basics of modern life and military preparedness.” The E.O. emphasizes that the combination of inadequate energy capacity and high prices presents a threat, which is further intensified by our vulnerability to fluctuations in commodity prices.
The DPA grants the president the power to influence domestic industry to prepare for national emergencies and safeguard the nation’s stability in the face of security threats. The DPA was originally passed in response to the Korean War to ensure the US had the industrial capacity to meet wartime needs. Over time, its application has expanded to address a broader range of national defense interests, including emergency preparedness, disaster response, and infrastructure protection. As an illustration, this grants the president power to require the prioritization of domestic contracts and control aspects of the energy marketplace. However, the president may only exercise this authority if essential materials, services, and facilities are scarce and critical for energy-related activities and their maintenance or expansion cannot be reasonably achieved without the exercise of such authority. 50 U.S.C. 4511(c)(2), 101(c)(2).
E.O. 14156 contains various provisions to execute its purpose. In addition to the president’s use of emergency authority, E.O. 14156 provides heads of executive departments and agencies emergency approvals, directing them to identify areas within domestic energy resources that can be expedited using these emergency approvals to achieve the outlined provisional goals of protection. Additionally, E.O. 14156 directs that the Environmental Protection Agency (EPA) “consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline to meet any projected temporary shortfalls in the supply of gasoline across the Nation.” The EPA has issued similar orders in the past with certain limitations, such as permitting the use during the summer driving season between Memorial Day and Labor Day or restricting year-round access to eight Midwest states. This E.O. promotes the availability of E15 year-round and nationwide. On February 21, 2025, the EPA announced that it is still considering issuing emergency fuel waivers in the absence of congressional action (currently being negotiated) to allow for year-round sale of E15 nationwide.
E.O. 14156 additionally contains a provision “to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects.” Relatedly, agencies are also directed to maximize the use of the US Army Corps of Engineers’ emergency permitting provisions to support the nation’s energy supply. The EPA administrator must promptly collaborate with the secretary of the Army and other agencies to carry out these responsibilities. This includes promptly coordinating permits under the Clean Water Act, the Rivers and Harbors Act, and the Marine Protection, Research and Sanctuaries Act. In response, the Army Corps of Engineers has identified and is currently reviewing hundreds of project applications to consider for emergency permitting. It has been a long-standing complaint that the typical environmental review process associated with permitting is lengthy, as it includes environmental impact studies, community notices, and assessments. Under E.O. 14156, these environmental processes may be streamlined, and approval of such permits may trigger litigation from environmental groups as a result.
There is a similar provision for the Endangered Species Act (ESA) to streamline environmental regulations that may burden the facilitation of the nation’s energy supply. E.O. 14156 also requires the secretary of the interior, in acting as chairman of the Endangered Species Act Committee, to promptly review applications submitted for an exemption from the obligations imposed by Section 7 of the act. Section 7 of the ESA, titled Interagency Cooperation, outlines the responsibilities of the services (Fish and Wildlife Service and National Marine Fisheries Service) and federal agencies to use their authorities to support the ESA’s purposes, requiring that their actions not be likely to jeopardize the survival of federally listed species or destroy or adversely modify designated critical habitats. On February 3, 2025, Interior Secretary Doug Burgum issued Secretarial Orders 3417 and 3418, both implementing E.O. 14156 at the Department of the Interior.
Lastly, E.O. 14156 directs the secretary of defense, in collaboration with the secretaries of the interior and energy, to assess the Department of Defense’s ability to acquire and transport energy needed for homeland protection and overseas operations, identifying vulnerabilities and recommending solutions, with a focus on the Northeast and West Coast regions. To address these vulnerabilities, construction authority is invoked, allowing the secretary of the Army to act, subject to presidential review.
About the authors
Alex Prochaska is a partner in Jones Walker LLP’s Corporate and Litigation Practice Groups, where he focuses his practice on environmental law. Alex defends clients in enforcement actions brought by state and federal agencies alleging violations of environmental laws including the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), Coastal Zone Management Act, and their state counterparts. He also counsels clients in responding to information requests from government agencies and provides guidance on self-reporting releases under federal, state, and local requirements. Alex can be reached at [email protected] or 337.593.7616.
Marisa Del Turco is an associate in Jones Walker LLP’s Litigation Practice Group and a member of the Energy, Environmental & Natural Resources Industry Team. Marisa focuses her practice in the areas of environmental and energy litigation, and regulatory compliance. She has particular experience working with businesses engaged in the extraction, production, storage, and distribution of oil and gas, as well as power derived from wind, solar, and other renewable sources. Marisa can be reached at [email protected] or 504.582.8165.
