What President Trump’s Energy Plan Means for the State Regulatory Environment, the Generation Mix and Electric Transmission
Signaling the prioritization of energy, President Donald Trump declared a national energy emergency on inauguration day. He issued several Executive Orders (EO) and Presidential Memoranda either unwinding the Biden administration’s energy policies or entering his own Orders to address what he described as inadequate energy supply in the United States and to encourage the expedient development of fossil fuel resources. Here, we will outline the key Orders and what they mean for the state regulatory environment, generation mix and electric transmission construction.
The Rescissions
Let’s start with the rescissions. President Trump revoked most of President Biden’s EOs and Presidential Memoranda on energy matters, some of which were entered in the weeks before he left office. The following is a summary of the key rescissions:
EO 13990 of January 20, 2021 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) entered on President Biden’s first day in office. The Order revoked the permit for the Keystone XL pipeline, established an Interagency Working Group on the Social Cost of Greenhouse Gases and directed federal agencies to support a transition to clean energy.
EO 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad) that paused “new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices.”
EO 14057 of December 8, 2021 (Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability) setting forth the policy of achieving a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050.
EO 14082 of September 12, 2022 (Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022) establishing funding to implement the IRA in the energy sector and creating the Office on Clean Energy Innovation and Implementation.
Presidential Memorandum of March 13, 2023 (Withdrawal of Certain Areas off the United States Arctic Coast of the Outer Continental Shelf from Oil or Gas Leasing) withdrawing areas in the Beaufort Sea from future oil and gas leasing, which completed protections for the entire U.S. Arctic Ocean.
Presidential Memorandum of January 6, 2025 (Withdrawal of Certain Areas of the United States Outer Continental Shelf from Oil or Natural Gas Leasing) protecting the East Coast, the eastern Gulf of Mexico, the Pacific off the coasts of Washington, Oregon and California and additional portions of the Northern Bering Sea in Alaska from future oil and natural gas leasing.
Energy-Focused Executive Orders
President Trump also issued several EOs and Presidential Memoranda focused on the energy sector following up on the President’s inaugural speech suggesting support for oil, gas and nuclear energy and an end to federal policies favoring clean energy, including wind and solar. Outlined below are the Trump administration’s energy-related EOs.
Unleashing American Energy
The Unleashing American Energy EO intends to encourage energy production and exploration on Federal lands and waters, to increase production of non-fuel minerals and to eliminate the electric vehicle (EV) mandate, among other policies. The order calls for:
federal agencies to review, revise and/or rescind all regulations that impose an undue burden on domestic energy production and use, specifically for “oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.”
the Council on Environmental Quality to provide guidance on implementing the National Environmental Policy Act (NEPA) with the goal of expediting permitting approvals and rescinding certain NEPA regulations related to the national environmental policy put in place during the Biden administration.
federal agencies to make every effort to expedite the permitting process.
the National Economic Council and the Director of the Office of Legislative Affairs to prepare recommendations to Congress that will expedite the permitting and construction of interstate energy transportation and other critical energy infrastructure projects, such as pipelines, particularly in regions lacking such development in recent years.
the federal permitting process to adhere to only relevant laws for environmental considerations without using arbitrary or ideologically motivated methodologies.
the resumption of the review of applications for liquified natural gas export projects.
National Energy Emergency
To start, President Trump’s National Energy Emergency EO defines energy 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” with wind and solar energy missing from the list. The Order is designed to expedite the permitting process for energy projects, reduce environmental regulations and promote fossil fuel development, particularly in regions like Alaska. Executive departments and federal agencies are directed to use their emergency authority or any other authority they may possess to facilitate the identification, leasing, siting, production, transportation, refining and generation of domestic energy resources, including resources on Federal lands. The U.S. Environmental Protection Agency (EPA) and the Secretary of Energy are given broad authority to increase oil and gas production.
Unleashing Alaska’s Extraordinary Resource Potential
This EO tracks the inaugural remarks made by President Trump to “drill, baby drill.” The Order directs agencies to expedite the permitting and leasing of energy and natural resource projects in Alaska, including liquefied natural gas projects, and end related environmental restrictions that would derail such efforts.
Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects
The title of the Memorandum speaks for itself, but it also pauses federal permitting, approvals and loans for all “new” onshore and offshore wind projects. The emphasis on the word “new” suggests that any project that has received a Record of Decision (ROD) from the Bureau of Land Management or the Bureau of Ocean Energy Management (BOEM) should be able to proceed with their project. However, the Memorandum calls out the Lava Ridge Wind Project, which received an ROD, and directed the Department of the Interior to place a temporary moratorium on it and “conduct a new comprehensive analysis of the various interests implicated by the Lava Ridge Wind Project and the potential environmental impacts.” The Memorandum also directs federal agencies to investigate “defunct and idle windmills” and recommend authorities to require their removal.
Anticipated Impacts on the State Regulatory Environment
The Trump administration’s energy policy and declaration of a national energy emergency will have varied impacts on state agencies involved in energy regulation, such as public utility commissions. By prioritizing fossil fuels and curtailing support for renewable energy, these Orders may require adjustments at the state level.
The Orders are anticipated to have a significant impact on states like New Jersey and New York, which have been investing in offshore wind to meet their decarbonization goals. New Jersey’s goal is to generate 11,000 MW of electricity from offshore wind by 2040 and transition to 100% clean energy by 2035. New Jersey has approved solicitations from three offshore wind developers with only one project receiving a ROD from BOEM. The New Jersey Board of Public Utilities issued a fourth solicitation in early 2024 which has not yet been awarded. A fifth solicitation slated for Q2 2025 may be off the table given the Trump administration’s Memorandum on offshore wind. States like New Jersey may need to reassess their energy portfolios and may struggle to get renewable projects that rely on federal approvals off the ground, like offshore wind in federal waters.
The Trump administration’s support for fossil fuels is less impactful on the state regulatory environment due to preexisting market forces. While the Trump administration will want to take credit, the fact is that natural gas plants are already on the rise due to strong demand from data centers. In May 2024 (well before the election), S&P Global Market Intelligence reported that U.S. utilities and investors plan to add 133 new natural gas-fired power plants to the nation’s grid over the next few years. These same market forces are delaying the closure of coal plants. Accordingly, strong demand will bolster gas and coal generation more than the administration’s Orders and Memorandum. State regulatory agencies are already seeing the impact of dramatically increasing demand, as utilities make significant changes to generation resource plans and capital outlays to provide for new gas plants and continued operation of coal plants. Similarly, the U.S. became the world’s largest crude oil producer in 2018 and has maintained that status ever since, breaking records for oil projection in 2024.
Areas to Watch Related to Onshore Wind Projects
While the federal government holds the keys to offshore wind leases, onshore projects do not rely as heavily on approvals, rights of way, permits, leases or loans from the federal government. On the other hand, the Trump administration’s Memorandum could be interpreted to apply to permits such as an endangered species permit from the U.S. Fish and Wildlife Service or a Determination of No Hazard from the Federal Aviation Administration. If so interpreted, it would cause massive disruption to new onshore wind projects. However, the Orders and Memorandum do not impact the Investment or Production Tax Credits, which are determined by Congress.
Potential Impacts on Transmission
Another area of interest for state regulatory commissions is electric transmission. Regional Transmission Organizations have identified hundreds of miles of new transmission projects, and these projects may have additional momentum because of the EO declaring a national energy emergency. That Order calls on federal agencies to identify and exercise all lawful authorities they may possess to “facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources.” The term “transportation” means the physical movement of energy, including through, but not limited to, pipelines. This includes electric transmission. Accordingly, state regulatory agencies should expect an uptick in applications for certification and siting of electric transmission lines. Interstate pipelines, on the other hand, are certificated and sited by the federal government.
If Past is Prologue
As we look forward to the current administration, we can look back at President Trump’s previous efforts in the energy sector. In 2018, the EPA under the Trump administration announced the replacement of the Obama administration’s Clean Power Plan with the Affordable Clean Energy Plan (ACE). ACE altered the New Source Review under the Clean Air Act, allowing new investment in older coal plants that would not have passed previously. ACE was disallowed by the D.C. Circuit in 2021, but that D.C. Circuit decision was overturned by the U.S. Supreme Court in June of 2022. With the change in energy demand and slower decommissioning of coal fired generation, it is unclear whether there is a need or desire for something like ACE. However, with the 2022 Supreme Court ruling, it may be available.
The other act that caused significant concern in the energy industry during the previous Trump administration was in 2018 when President Trump ordered Energy Secretary Rick Perry to take steps to keep struggling coal and nuclear plants open. The plan called for the use of the Federal Power Act and Defense Production Act and would have required regional grid operators to buy coal and nuclear generated power and provide guaranteed profit. The cost impact and market disruption would have been immense, and the plan was rejected by the Federal Energy Regulatory Commission.
Property Tax Relief for Southern California Property Owners Affected by the Recent Palisades, Eaton, and Other Fires and Windstorm Conditions
Recent fires in Southern California, including the Palisades, Eaton, and Sunset fires, have collectively burned tens of thousands of acres and devastated communities across the Greater Los Angeles area. More than 12,000 structures have been destroyed or damaged, including homes and businesses, and initial estimates have placed this emergency among the most destructive in California history. On Jan. 7, 2025, Governor Newsom proclaimed a state of emergency in Los Angeles and Ventura Counties due to the Palisades Fire and windstorm conditions.
Below we highlight property tax relief measures that may be available to property owners whose properties have been damaged or destroyed by these recent events. As discussed further below, for most affected property owners, property tax relief options include a temporary reduction in the damaged or destroyed property’s assessed value, deferral of property taxes, and/or one or more options to transfer the damaged or destroyed property’s base year value to replacement property. A recently issued executive order also provides for a limited suspension on the imposition of penalties, costs, or interest for the failure to pay property taxes or file a personal property tax statement. Each of these relief measures, and the related eligibility and filing requirements, are discussed in more detail below. Additionally, in certain situations, additional relief options may be available, depending on the specific facts in each case. Property owners should seek the advice of their professional advisors to understand how the options may apply to their particular circumstances.
Samuel Weinstein Astorga also contributed to this alert
Continue reading the full GT Alert.
France Launches Long-Awaited Procedure to Support the Production of Renewable or Low-Carbon Hydrogen
Legal and Regulatory Framework
Just before Christmas, France took another major step forward in its decarbonization strategy with the launch of the competitive bidding procedure designed to award financial support for the production of renewable[1] or low-carbon[2] hydrogen (H2) by water electrolysis.
This support mechanism falls within the legal framework defined by Ordinance no. 2021-167 of February 17, 2021, codified in a dedicated chapter of the Energy Code.[3] Articles L.812-1 et seq. and R.812-1 et seq. of the Energy Code provide a framework for the State to grant public operating and/or investment aid, in order to accelerate the deployment of green hydrogen production capacity.
The support mechanism set out in the current procedure launched by Ademe provides for the granting of aid over 15 years, with a ceiling price of 4 euros/kgH2.
Details of the Procedure
The published consultation document specifies that the power allocated to this first phase of competitive bidding is 200 MW of indicative electrolysis for the period 2024-2025, with a planned ramp-up to 1000 MW spread over several periods, and in particular 250 MW in 2026 and 550 MW in 2027.
The procedure comprises three successive phases:
Selection of candidates on the basis of their technical and financial capabilities, assessed on the basis of the requirements detailed in article 3.4 of the consultation document. In principle, between three and 12 candidates will be admitted to the dialogue procedure.
The competitive dialogue phase with the selected candidates in order to refine their projects.
Designation of the winners who will be awarded financial support after evaluation of the final applications.
The deadline for applications for the first period is March 14, 2025. Applications will be analyzed within two months of this date, with a view to selecting the candidates for the dialogue phase in May. The date for submission of the final bids and selection of the winning projects remains to be confirmed.
Project Eligibility Criteria and Information Expected From Candidates
First of all, it should be noted that only entirely new installations are eligible. This means that work on the project must not have begun prior to the selection of candidates or at the time of the final application for aid (excluding any connection work), that investments must not be committed before the winners are chosen, and that the plant must not produce H2 before the contract comes into force (except in the test phases).
As part of the procedure, candidates must demonstrate their technical capabilities, their experience in the development of industrial projects involving technological risks (and present a minimum of three relevant references) and the stage of maturity and development of their project.
They must submit a file detailing in particular:
A description of the project: only projects with an electrolysis capacity of more than five MW and less than 100 MW, located in France, are eligible.
An electricity supply plan demonstrating that 30 percent of the total volume of electricity used is secured over 10 years by means of memoranda of understanding, letters of intent or other forms of pre-contractual clauses signed by the applicant, and that the electricity used is of renewable or low-carbon origin.
Commercial commitments covering at least 60 percent of production for direct industrial use.[4] The applicant must therefore be able to demonstrate that 60 percent of the offtake (Hydrogen Purchase Agreement – HPA) is secured by memoranda of understanding, letters of intent or other forms of pre-contractual clauses.
Financial guarantee: A guarantee equivalent to eight percent of the maximum amount of support requested is required, which must take the form of a GAPD (Guarantee on First Demand) or a deposit in the hands of the CDC.
Strict timetable for financial closure and industrial commissioning: Financial closure must take place within 30 months of signature of the aid contract between the French government and the winning candidate, and industrial commissioning within 60 months (except in exceptional circumstances, duly justified, which will be specified in the specifications).
Cybersecurity criteria: Facilities must be operated and data stored within the EEA (European Economic Area).
The consultation document also emphasizes the resilience of projects and their contribution to Europe’s “net zero” strategy, notably by limiting to 25 percent of the project’s electrolysis capacity (in electrical MW) the supply of cell stacks whose surface treatment, cell unit production or assembly has been carried out in a non-EU country.[5] The procedures for checking this requirement will be detailed in the specifications at the end of the dialogue phase.[6]
Summary of Selection Criteria and Weighting Issues
At the end of the dialogue phase, successful applicants will be asked to submit their final applications. Project selection will be based on two criteria,[7] with a weighting that strongly favors the financial criterion:
Price criterion (at least 70 percent of the weighting): Projects will be assessed on the level of subsidy requested, expressed in euros per kilogram of hydrogen produced. The amount of the subsidy may not exceed the ceiling of four euros/kgH2. However, the consultation document does not specify how this weighting is to be applied. Should we deduce, for example, that a request for four euro/kg would be equivalent to a score of zero?
Non-price criteria (maximum 30 percent of the weighting): These criteria will assess the energy, technological and environmental impact of the projects.
The high weighting of the price criterion encourages applicants to limit their subsidy requests to maximize their chances of being selected. However, non-price criteria, although secondary, will play a decisive role in differentiating projects on strategic aspects such as innovation, energy efficiency and environmental benefits.
Opportunities and Challenges for Economic Operators
This procedure represents a significant opportunity for economic players wishing to position themselves on the green hydrogen market in France. However, it implies rigorous preparation of applications, mastery of regulatory requirements, and the ability to structure a sustainable and secure business model. The conditions for participation require a well-defined strategy and a perfect command of the commitments required by the consultation document and future specifications.
Interested operators should therefore familiarize themselves with the requirements of the consultation document and prepare for the various phases of the procedure. Particular attention should be paid to compiling administrative and technical files, identifying industrial partnerships and securing supply and sales contracts.
In particular, the technical information to be provided by bidders should focus on the progress and strategy of engineering, procurement and construction contracts (EPC, O&M, MOE, MOA, etc.), securing offtake and selecting equipment suppliers. It seems illusory to expect bidders to present firm commitments or signed contracts at the bid submission stage, given the uncertainty surrounding their selection, the risk of exposure linked to the indexation of material prices and the impossibility for their co-contractors to commit to a firm price at this stage.
Finally, given the prices currently observed in France for green hydrogen compared with those for grey hydrogen, it is legitimate to question the level of support envisaged in this procedure. Is a ceiling of €4/kg sufficient to enable a transition to scale and provide an adequate incentive for the development of the sector? This is doubtful.
Read a French language version of this update.
[1] As defined in article L. 811-1 of the French Energy Code, supplemented by decree.
[2] Ibid.
[3] Chapter II of Title I of Book VIII on hydrogen.
[4] For the purposes of the consultation document, direct industrial use does not include heating (with the exception of high-temperature thermal processes ( >400°C)); injection into the natural gas network; or electricity production from hydrogen.
[5] If the volume concerned makes the EU dependent.
[6] This clarification is welcome, as the entire legal framework for implementing the NZIA Regulation is not yet in force at the time of writing.
[7] Defined by article R. 812-14 of the French Energy Code.
International Arbitration: What You Need to Know for 2025
As 2025 gets underway, Womble Bond Dickinson has been taking stock of the major international arbitration developments from last year that are likely to affect our clients with international business.
In 2024, we saw significant developments in international arbitration law and policy in the U.S. and elsewhere. The impact will vary depending on the nature of your business and where you conduct it. Some of the developments are positive—especially for companies seeking to enforce their arbitration agreements and awards in the U.S. federal courts. Other changes—including, for example, in the European Union and Mexico—require companies to be especially vigilant about their international arbitration agreements and how their operations and investments in those jurisdictions are structured.
We have selected five developments from 2024 that will significantly impact international arbitration in the United States and elsewhere:
U.S. Supreme Court blocks immediate appeals of decisions to compel arbitration while arbitration is ongoing
Bipartisan consensus possibly emerges in the United States against international arbitration of foreign investment disputes
The Energy Charter Treaty “modernization” will restrict the international arbitration of many energy investment disputes in Europe
D.C. Circuit decides that district courts have jurisdiction to enforce investor-state arbitral awards from disputes within the European Union
Mexican court reform bolsters the need for international arbitration when doing business in Mexico
Last Year’s Key Developments for International Arbitration
U.S. Supreme Court Blocks Immediate Appeals of Decisions to Compel Arbitration While Arbitration is Ongoing
Last year, the U.S. Supreme Court once again confirmed the long-standing commitment of the U.S. federal courts to ensure that agreements to arbitrate are enforced. In May 2024, the Court held in Smith v. Spizzirri that, when a district court compels arbitration pursuant to the Federal Arbitration Act, it must stay—not dismiss—the lawsuit upon the request of a party.
Before Smith, some federal courts entered a final order of dismissal, allowing the losing party to immediately appeal the final order—which often resulted in appellate litigation parallel to arbitration. The major practical upshot of Smith is that no appeal will be immediately available against a district court’s decision to compel arbitration.
Thus, even if a contractual counterparty seeks to circumvent an arbitration agreement by filing suit in the United States, the federal courts will enforce the arbitration agreement without burdening the other party with additional appellate court battles as the arbitration proceeds.
By contrast, if the motion to compel arbitration is denied, the party seeking arbitration is entitled to an immediate interlocutory appeal pursuant to the Federal Arbitration Act. In other words, the party who has filed a motion to compel arbitration—but loses—has the right to an immediate interlocutory appeal. The party who opposes the motion to compel arbitration—and loses— does not have the right to an immediate appeal. Instead, the litigation is stayed while the arbitration proceeds.
Smith provides a strong affirmation in favor of enforcing agreements to arbitrate, as it largely precludes parallel appellate court proceedings, and enables the arbitration to proceed without the burden of such additional proceedings.
While the Supreme Court decided Smith under Chapter 1 of the Federal Arbitration Act—which primarily applies to domestic arbitration—the decision will likely apply to international arbitration as well. In the United States, most international arbitration is governed by Chapter 2 of the Federal Arbitration Act (implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). However, the Federal Arbitration Act provides that Chapter 1 also applies to international arbitration to the extent it is not inconsistent either with Chapter 2 or with the New York Convention.
Womble Bond Dickinson previously published a Client Alert on this development.
Is There an Emerging Bipartisan Consensus in the United States Against International Arbitration of Foreign Investment Disputes?
We will be paying close attention to shifts in U.S. policy on the protection of foreign investment, including the availability of investor-State arbitration to resolve disputes with foreign governments. Under many U.S. trade and investment treaties, an investor from the United States can bring arbitration for alleged treaty violations directly against a foreign State that has ratified the treaty—and vice versa. The idea is to encourage foreign investment by providing various protections to foreign investors—including a neutral arbitration forum where the investor can assert claims for violations of the treaty directly against the State that is “hosting” the investment.
But apparent bipartisan opposition to investor-State arbitration could have a significant impact on both current and future U.S. treaties that offer this key form of protection to U.S. companies with foreign investments and operations.
Although the new Trump administration has not yet expressed a clear position on investment protection and investor-State arbitration, we currently expect that it will not be supportive. During the first Trump administration, U.S. Trade Representative Robert Lighthizer expressed deep skepticism about such protections—as they encourage investment abroad and, according to Lighthizer, intrude on U.S. sovereignty at home. Under Lighthizer’s stewardship, the first Trump administration curtailed the investment protections on offer in the USMCA. The nominee for U.S. Trade Representative in the second Trump Administration, Jamieson Greer, served as chief of staff to Lighthizer in the last Trump administration.
Opposition to investor-State arbitration also has support among various democratic members of Congress. In recent years, democratic senators and representatives have sent repeated letters that express strong criticisms of investor-State arbitration and call for the reduction or elimination of this mechanism in U.S. treaties. In a recent letter from December 19, 2024, 37 democrats called upon the Biden administration “to eliminate or drastically reduce the ability of multinational corporations to use ISDS [investor-state dispute settlement] tribunals as a tool to attack legitimate government actions and extract unlimited sums from countries’ taxpayers.”
This opposition translated into some action in the closing days of the Biden administration. Despite skepticism from some senators regarding the secrecy of negotiations, on January 15, 2024, the United States and Colombia concluded a decision to re-interpret the investment protections in the Colombia-USA Trade Promotion Agreement. It was rumored that the United States Trade Representative was also negotiating with Mexico to similar ends.
As we move into the Trump administration, we will continue to monitor these developments and alternative means of investment protection for U.S. investors abroad.
The Energy Charter Treaty “Modernization” Will Restrict the International Arbitration of Many Energy Investment Disputes in Europe
We expect a flurry of investor-State arbitration activity in the European energy sector through September 2025. The parties to the Energy Charter Treaty (ECT)—which protects energy investments in Europe and surrounding areas—adopted a “modernization” of the treaty on December 3, 2025 after years of debate and false starts. The modernization significantly curtails investment protections overall, but it is not applicable to investor-State arbitrations commenced before the changes take provisional effect on September 3, 2025.
While this development will impact many European energy businesses, the modernization is also relevant to non-Europeans—such as United States companies. These businesses may currently enjoy ECT protection for their subsidiaries, operations, or investments in Europe or surrounding areas. They should assess how the ECT modernization may affect their investment protections in and around Europe.
The full set of changes to the ECT is extensive and detailed. However, some of the changes with the most significant impact on foreign investors include the following:
The ECT will no longer apply to most new hydrocarbon investments made after 3 September 2025 (Annex NI, Section B). Even most existing hydrocarbon investments will lose protection after a ten-year period (Annex NI, Section C). Investors in the hydrocarbon sector in Europe will, in many cases, need to start looking elsewhere for investment protection, such as other investment treaties.
The ECT will contain language that may block the application of its dispute resolution provisions to so-called intra-EU investor-State disputes—i.e., disputes between a company from one EU member state and another EU member State (Art. 24(3)). The highest court in the EU, the Court of Justice of the European Union, has already held that EU law prohibits intra-EU investor-State arbitration, but many international arbitration tribunals have disagreed with the court’s ruling and have allowed the arbitrations to proceed. The new language will make the prohibition explicit.
Businesses that are currently protected by the ECT through their presence in the EU—because either their parent company or a subsidiary is established in an EU Member State—should plan accordingly for future investment protection.
The ECT will add detailed guidelines for the application of key investment protections and for the conduct of investor-State arbitration. These guidelines may, in some cases, expand the scope of protection but, in many other cases, will restrict or reduce it.
The ECT will expressly reflect governments’ concerns about their freedom to adopt climate change mitigation and adaptation measures. The modernization adds provisions addressing the right to regulate (new Art. 16), providing exceptions to the treaty for certain necessary environmental measures (Art. 24), and containing commitments to implementing climate change agreements (Art. 19bis).
All energy-sector businesses should consider carefully the specific consequences of the ECT modernization for their investments or operations in and around Europe. A more comprehensive summary of the changes is available here. Womble Bond Dickinson’s International Arbitration practice can also advise on the specific impact for your business.
D.C. Circuit Decides that District Courts Have Jurisdiction to Enforce Investor-State Arbitral Awards from Disputes within the European Union
We are closely following key litigation in the United States over the enforceability of investor-State arbitral awards rendered between an EU company and an EU member state. The EU has campaigned for over a decade to eliminate so-called intra-EU investor-State arbitration. As noted above, the Court of Justice of the European Union, the highest EU court, has opined that EU law invalidates arbitration clauses permitting such arbitration.
Various investors that have obtained favorable awards in such intra-EU arbitrations have sought to enforce them outside of the EU, including in the United States, the United Kingdom, and Australia. Arbitral tribunals have generally concluded that EU law does not affect their jurisdiction to resolve intra-EU disputes. However, the EU and the respondent states have opposed enforcement of the resulting arbitral awards, arguing that the arbitrations were not permitted under EU law.
On August 16, 2024, the D.C. Circuit clarified the U.S. position on the matter in its NextEra v. Spain decision. It held that the U.S. district courts have jurisdiction to enforce these awards under the arbitration exception to the state immunities afforded by the Foreign Sovereign Immunities Act (FSIA). The NextEra decision is a significant step toward definitively establishing that intra-EU investor-State awards are indeed enforceable in the United States.
Spain, which has numerous unpaid awards in favor of EU investors, argued in NextEra that the FSIA blocked the enforcement actions against it. It argued that it had no arbitration agreements allowing for intra-EU arbitration, since such agreements are not permitted by EU law. The DC Circuit rejected this line of argument. It concluded that the Energy Charter Treaty—the basis for the relevant arbitrations— contains a relevant arbitration agreement and therefore that the U.S. district courts have enforcement jurisdiction over intra-EU awards.
Following the DC Circuit’s decision, the district courts will still need to decide upon the merits of each enforcement action. However, the Federal Arbitration Act and the federal law regarding ICSID awards as well as the ICSID Convention and New York Conventions (two international treaties governing the enforcement of arbitral awards) leave few or no grounds for the courts to deny enforcement.
As of this writing, Spain has petitioned to challenge the D.C. Circuit’s NextEra decision before the U.S. Supreme Court. However, the Supreme Court has not yet agreed to review the decision. Businesses that are potentially affected should follow future developments in this key litigation.
Mexican Court Reform Bolsters the Need for International Arbitration When Doing Business in Mexico
We noted last year that Mexico had adopted a major judicial reform in September 2024, the effects of which will begin to be felt this year. This judicial reform will require popular elections for judges at all levels of the Mexican court system. It underscores the importance of access to international arbitration for all foreign companies doing business in Mexico, as international arbitration provides insulation and protection from an increasingly unpredictable domestic court system.
Various observers have voiced concerns that the reform threatens to politicize and destabilize the judiciary and undermine judicial independence. As the U.S. Ambassador to Mexico emphasized in a public statement, the reform “will threaten the historic trade relationship we have built, which relies on investors’ confidence in Mexico’s legal framework” and “[d]irect elections would also make it easier for cartels and other bad actors to take advantage of politically motivated and inexperienced judges.”
The Mexican judicial reform includes the following significant changes:
Judges will be elected by popular vote to the Mexican Supreme Court, Circuit Courts, and District Courts, as well as others. The initial election will take place in 2025 for about half of judges, including all Supreme Court justices, with a further election in 2027 for the remaining judges.
All judges will be subject to disciplinary proceedings before a popularly elected Tribunal of Judicial Discipline, which will have the power to impose sanctions on judges up to and including removal from office. The decisions of the Tribunal of Judicial Discipline are not subject to appeal.
The Mexican judiciary will be prohibited from issuing general injunctions against laws and regulations in response to challenges to their constitutionality.
The number of justices on the Mexican Supreme Court will be reduced to nine—from the current 11 justices.
The good news is that, with careful advanced planning, foreign businesses can avoid the Mexican courts in many circumstances. They can seek to have any contractual disputes with Mexican business partners submitted to international arbitration instead. They may also be able to arrange for access to international arbitration to resolve any disputes with the Mexican government itself.
Womble Bond Dickinson previously published a Client Alert addressing Mexico’s judicial reform and options for foreign businesses that may be impacted.
Thailand Eases Regulations for Solar Rooftop Installations
On December 27, 2024, the Thai Cabinet relaxed regulations on solar rooftop installations with the introduction of the Ministerial Regulation Re: Designation of Type, Kind, and Size of Factories (No. 3), B.E. 2567 (2024) (the “Ministerial Regulation”). The Ministerial Regulation does away with the need to obtain a factory license (commonly known as a Ror. Ngor. 4) from the Energy Regulatory Commission (ERC) or Department of Industrial Works (DIW)[1] for all solar rooftop power generation installations located outside of industrial estates, irrespective of their production capacity. This relaxation came into effect on December 28, 2024.
Previously, the installation of such solar rooftops with a generating capacity exceeding 1,000 kW required a factory license. This move specifically targets solar power generation installations located on rooftops, terraces, or any part of buildings that can be occupied or used. It is noted that solar ground mounted and floating projects are not affected by the Ministerial Regulation.
As a result of the introduction of the Ministerial Regulation, the procedures for installing solar power panels on rooftops outside of industrial estates have been simplified, eliminating the need for companies and individuals to obtain factory licenses from the ERC.
Impacts on Ongoing Projects Located Outside of Industrial Estates
For companies currently in the process of obtaining the Ror. Ngor. 4, this requirement is no longer applicable. Correspondingly, the environmental safety assessment (ESA) report, which was a prerequisite for submitting a Ror. Ngor. 4 application, is also no longer required.
For applications already submitted to the ERC, no further action is required from the companies.
Projects Located Within Industrial Estates
Despite the relaxation on factory licensing requirements, electricity generation and sale from solar rooftop projects located in industrial estates under the Industrial Estate Authority of Thailand (IEAT) still require the usual Land Use Permit (IEAT 01/2) and the notification of business commencement in industrial estates for such electricity generation and sale business.
However, for self-consumption solar rooftop projects, the IEAT plans to exempt the abovementioned requirements. The exemption is currently under the IEAT’s internal discussion and development.
The IEAT expects to release its official notification and detailed procedures by mid-2025. Until then, these requirements remain applicable to all solar rooftop installations within industrial estates.
Next Steps on the Ministerial Regulation
The enactment of the Ministerial Regulation marks a significant step towards simplifying the regulatory process for solar rooftop installations in Thailand, encouraging more sustainable energy projects throughout the country.
As a leading law firm for projects and energy in Thailand, we are well-positioned to advise both local and international companies on all aspects of renewable energy.
This article was authored by Chumbhot Plangtrakul, Thaphanut Vimolkej, Jidapa Songthammanuphap, and Joseph Willan.
[1] Section 48 of the Energy Industry Act, B.E. 2550 (2007), as amended permits the ERC to act as a one-stop service unit which grants all permits and licenses required for energy businesses, instead of the lead regulators. This includes a Ror. Ngor. 4 required under the Factory Act, B.E. 2535 (1992), as amended. Therefore, the ERC is responsible for issuing a Ror.Ngor. 4 on behalf of the DIW, the lead regulator.
The Trump Administration’s Day-One Executive Actions: Impacts on Energy and Environmental Policy and More
On January 20, 2025, President Trump re-assumed the presidency with a flurry of executive orders and memoranda, many of which directly impacted energy and environmental issues. These orders included a production-minded strategy entitled “Unleashing American Energy,” a short-term regulatory freeze, a declaration of a national energy emergency, a specific order regarding wind energy and an order establishing the new Department of Government Efficiency (DOGE). Other topics may have profound impacts on energy, like the trade executive order which may impact the supply chain for energy projects.
Bracewell’s Policy Resolution Group has prepared a source book of analytical material on all the executive orders and more. We invite you to read through the material and contact us with questions. It has been said that so many orders came out on Day One precisely to shield any one order from too much criticism. In any event, the process of addressing all these executive actions is ongoing and iterative.
To get a sense of all that has happened, we have broken out a series of answers to frequently asked questions. Below is our thinking, although it is not yet dispositive.
1. What is an executive order anyway, and how far can it move the needle?
A presidential executive order is a signed directive from the president to federal agencies and officials of the executive branch, carrying the force of law. These orders allow presidents to move quickly on policy matters without congressional approval, making them powerful tools for implementing the president’s agenda.
However, executive orders face significant limitations. First, they must be rooted in powers granted to the president by the Constitution or delegated by Congress through federal law. Presidents cannot simply create new laws or override existing ones through executive orders. Second, executive orders can be challenged in federal courts if they exceed presidential authority or violate constitutional rights. The Supreme Court has struck down executive orders multiple times throughout history.
Additionally, future presidents can easily revoke or modify previous executive orders with a stroke of a pen. This means that policies implemented through executive orders may lack permanence compared to legislation passed by Congress. Congress can also pass laws that explicitly override executive orders or deny funding for their implementation.
Finally, executive orders only apply to the federal government and its employees. They cannot directly regulate private citizens, businesses, or state governments unless specifically authorized by the Constitution or federal law.
2. I see the president signed an executive order implementing a regulatory freeze. What does that mean for rules already final? What does it mean for sub-regulatory actions like guidance?
A regulatory freeze like the one described in President Trump’s recent executive order could be applied to regulations and to guidance documents or other sub-regulatory notices. Such freezes are fairly commonplace during presidential transitions between administrations of different political parties. In brief, the executive order, titled “Regulatory Freeze Pending Review,” directs executive departments and agencies to halt the proposal or issuance of any rules until they are reviewed and approved by a department or agency head appointed or designated by the president after January 20, 2025.
For rules that are recently finalized and effective, the executive order may still impact their implementation depending on their status and significance.
The order directs agencies to consider suspending or extending the effective dates of recently issued rules to allow for further review by the new administration. This review ensures alignment with the administration’s priorities and provides an opportunity to re-evaluate rules for their legal, economic, and policy implications.
If deemed inconsistent with the administration’s objectives, such rules could be modified, repealed, or replaced. However, exemptions may apply to rules critical to public health, safety, or national security.
As a result, agencies and stakeholders may face delays or uncertainty regarding the enforcement of these recently finalized regulations. This process underscores the administration’s focus on recalibrating the regulatory landscape to reflect its goals while maintaining flexibility for urgent matters.
The executive order establishes a temporary halt on the issuance, proposal, or implementation of new regulations and guidance by executive departments and agencies. It applies to rules and regulatory actions, including those defined under the Administrative Procedure Act (5 U.S.C. § 551(4)), Executive Order 12866, and Executive Order 13891, encompassing guidance documents and policy interpretations.
The order mandates that no regulatory action be proposed or finalized without review and approval by a department or agency head appointed by the president after January 20, 2025. It also calls for the withdrawal of regulations that have been submitted to the Federal Register but have not yet been published, as well as the suspension or extension of effective dates for recently issued rules to allow for additional review.
This freeze aims to ensure that pending or new regulations align with the incoming administration’s priorities, allowing for comprehensive evaluation of their economic, legal, and policy implications. Exemptions may be granted for rules critical to public health, safety, or national security, as determined on a case-by-case basis.
3. What did the president mean when he declared a “National Energy Emergency” and what are the practical implications?
President Trump declared a “National Energy Emergency,” citing insufficient energy production, transportation, refining, and generation as critical threats to the US economy, national security, and foreign policy. The key elements of that declaration included: (1) an order designating vulnerabilities in energy infrastructure and supply as unusual and extraordinary threats, justifying the use of broad emergency powers; (2) a directive to agencies to expedite the leasing, permitting, siting, production, transportation, refining, and generation of energy resources, including on federal lands; and (3) invoking specific authority, like the Defense Production Act (DPA) and Section 202(c) of the Federal Power Act (FPA).
What does it all mean?
DPA grants the federal government authority to direct industrial production to address national security needs, which now include energy infrastructure. Theoretically, it could compel companies to prioritize contracts for energy infrastructure, including pipelines, refineries, and other projects. Pursuant to DPA authority, the government might offer loans, grants, or subsidies to increase the domestic manufacturing of critical energy components like turbines, batteries, and transformers. DPA could even be used to increase capacity for refining fossil fuels or producing biofuels.
FPA Section 202(c) enables the secretary of energy to direct power plants or transmission systems to operate during emergencies to ensure grid reliability, potentially keeping coal, natural gas, and nuclear power plants operational by overriding environmental or regulatory restrictions.
By leveraging emergency tools like DPA and Section 202(c), the administration could expedite projects and mitigate regulatory delays, reshaping the US energy landscape. But use of the authority in this manner is still somewhat untested.
4. There has been so much discussion on permitting reform, particularly in Congress relating to the National Environmental Policy Act (NEPA). What do the executive orders do to advance the permitting reform agenda? Does it obviate the need for congressional action?
Unleashing American Energy: The executive order entitled “Unleashing American Energy” addresses NEPA when it calls for streamlined environmental reviews and permitting processes for energy projects. It directs federal agencies to ensure that NEPA reviews are completed within specified timeframes and limits their scope to avoid delays in energy development.
The order likely improves efficiency by reducing bureaucratic hurdles and establishing clearer timelines, but its effectiveness candidly will depend on agency implementation and potential legal challenges.
The order may well expedite permitting administratively, but it does not eliminate the need for legislation to codify broader reforms or address more complex permitting barriers, such as litigation risks or inter-agency conflicts. Without Congress acting, the order’s impact may be limited to short-term procedural improvements rather than lasting, comprehensive changes.
National Energy Emergency: Unlike past administrations prioritizing renewable energy (e.g., President Biden’s clean energy investments), this order emphasizes fossil fuels and traditional energy infrastructure as critical to national defense. The “National Energy Emergency” executive order’s directive to federal agencies to expedite the leasing, permitting, and siting of energy projects, including on federal lands, also could streamline the approval process for energy infrastructure. By invoking emergency authorities like DPA, the government can prioritize energy projects deemed critical to national security and provide financial incentives to accelerate production and infrastructure development. Additionally, FPA Section 202(c) authority could be fashioned to override environmental or regulatory constraints in certain circumstances.
5. What about the pause on federal spending under the Inflation Reduction Act?
Section 7 is the provision within the “Unleashing American Energy” executive order which purports to “terminate the Green New Deal.” We’re still thinking it through. But in any event, Section 7 appears to be about disbursement of federal funds or loan guarantees, and not about tax credits taken on a corporate income tax return to offset a tax liability. An argument could be made that if the Treasury is providing a direct payment to an entity that has no tax liability (like a tax-exempt entity), that could be regarded as a disbursement. This issue is not squarely addressed in the executive order.
Even with its limited scope, Section 7 of the executive order contains directives that may raise legal and contractual concerns, particularly under the Impoundment Control Act (ICA) and regarding federal contractual obligations.
Section 7(a) mandates the following:
Immediate Pause of Funds: All agencies are directed to pause disbursements of funds appropriated under the Inflation Reduction Act of 2022 (Public Law 117-169) and the Infrastructure Investment and Jobs Act (Public Law 117-58).
Review Process: Agencies must review their processes and programs for issuing grants, loans, contracts, or any financial disbursements to ensure alignment with the executive order’s policy.
Reporting Requirement: Agency heads must report their findings within 90 days to the National Economic Council (NEC) and the Office of Management and Budget (OMB), including recommendations for policy alignment.
Conditional Disbursement: Funds cannot be disbursed until the OMB Director and the Assistant to the President for Economic Policy approve them as consistent with the executive order.
Are there legal limits on this? Yes. This provision could run afoul of the Impoundment Control Act which requires congressional acquiescence for refusal to allocate appropriated funds. Also, the federal government can be subject to legal remedies associated with violation of contracting rules. If challenged, this section of the executive order might be subject to scrutiny by Congress, the GAO, inspectors general, or federal courts, as it arguably encroaches on Congress’s power of the purse and may undermine federal obligations.
6. What is DOGE and its range of motion?
The executive order establishing DOGE tasks it with modernizing federal technology and enhancing governmental efficiency. The order restructures the United States Digital Service (USDS) within the Executive Office of the President, renaming it the United States DOGE Service. Additionally, a temporary organization — the US DOGE Service Temporary Organization — was created to execute the president’s 18-month agenda, set to conclude on July 4, 2026. Federal agencies are also required to establish DOGE Teams to collaborate with USDS in implementing this agenda.
The structure evades lots of oversight, but not all. For example:
Freedom of Information Act (FOIA): FOIA applies to federal agencies as defined in 5 U.S.C. § 551, which excludes the Executive Office of the President and its components. Since DOGE operates within the Executive Office, it is generally not subject to FOIA.
Administrative Procedure Act (APA): The APA governs federal agencies’ rulemaking and adjudication processes. Entities within the Executive Office of the President that solely advise and assist the President are exempt from the APA. DOGE’s advisory role likely places it outside the scope of the APA.
Open Meetings Requirements: The Sunshine Act mandates open meetings for federal agencies headed by a collegial body. Since DOGE is led by an administrator rather than a multimember body, this act does not apply.
Federal Register Publications: Agencies must publish certain information in the Federal Register. However, components of the Executive Office of the President that solely advise and assist the President are typically exempt from these requirements. DOGE is not obligated to publish its findings or recommendations in the Federal Register.
Annual Federal Appropriations: DOGE’s activities depend on funding through annual appropriations. The implementation of its initiatives is subject to the availability of appropriated funds, as stated in the executive order.
Other Legal Limitations: DOGE must operate within the bounds of existing laws and regulations. The executive order specifies that its provisions should not impair or affect the authority granted by law to executive departments or agencies, nor the functions of the Office of Management and Budget. Implementation is subject to the availability of appropriations and applicable law.
While DOGE may claim exemptions from FOIA or the APA, any action that directly impacts individuals or organizations outside the Executive Office could be subject to judicial review. This could expose DOGE to lawsuits that compel disclosures or constrain its activities.
Questions remain, too, related to rules governing conflicts of interest for agency officials. For example, senior officials must file public financial disclosure reports under the Ethics in Government Act (EGA) to identify potential conflicts of interest between their financial interests and official duties. Meanwhile, the Conflict of Interest Statutes (18 U.S.C. §§ 201-209) prohibit officials from participating personally and substantially in government matters affecting their financial interests and from receiving outside compensation for government-related matters. Finally, the Office of Government Ethics may require divestitures, recusals, or waivers to address conflicts of interest for senior officials.
At the same time, if DOGE were to rely on external advisors, rules requiring disclosure of relevant financial interests would apply. Further, if DOGE forms a formal advisory group, the Federal Advisory Committee Act (FACA) then applies, which similarly requires public disclosure of members’ financial interests, open meetings unless exceptions apply, and publication of reports and advice in the Federal Register, among others. Informal consultations or individual advisors generally do not trigger FACA, but structured advisory groups would. In fact, on the same day as President Trump’s inauguration, various public interest groups filed lawsuits that alleged DOGE’s structure and operation violated FACA.
Can DOGE avoid congressional oversight?
While DOGE may have some structural features that limit direct congressional oversight, it cannot entirely avoid scrutiny due to the checks and balances inherent in US governance. Oversight mechanisms and potential limitations include budget and appropriations, congressional hearings, investigations or audits by the Government Accountability Office, or congressional legislation targeting DOGE’s structure, functions, or findings.
Frank V. Maisano, Paul Nathanson, George D. Felcyn, Joseph A. Brazauskas, Anna B. Karakitsos, Liam P. Donovan, Dylan Pasiuk, and Kyle J. Spencer also contributed to this article.
Lead Contamination in Water: Flint Water Crisis Update
The existence of lead pipes in municipal water systems and service lines connecting residential and commercial properties to water mains throughout the United States continues to generate litigation and regulatory action. The U.S. government reported in 2023 that more than 9.2 million American households connect to water through lead pipes and lead service lines.[1] The water crisis in Flint, Michigan, that arose a decade ago and gained national prominence involved water allegedly contaminated both by a change in water source and the presence of old lead service lines. That case, involving over 25,000 individual lawsuits as well as class actions, is approaching an important milestone as a partial settlement nears conclusion.
Background
The Flint water crisis began in April 2014 when the City of Flint switched its source of municipal water to the Flint River. For decades previously, Flint had received water from Lake Huron that was pre-treated by the Detroit Water and Sewerage Department.[2] Following the switch, residents soon reported that “there was something wrong with the way the water looked, tasted, and smelled, and that it was causing rashes.”[3] Tests showed the presence of bacterial contamination. In response, the City treated the water with additional chlorine, which was alleged to have exacerbated the corrosion in the old water lines and allegedly the “corrosion contaminated the water with hazardous levels of lead.”[4] Subsequently, it was alleged that lead monitoring showed results exceeding the Lead and Copper Rule’s action levels for lead, and that a published study showed a spike in the percentage of children in Flint with elevated blood lead levels.[5]
Litigation
Litigation involving the Flint water crisis (the Flint Water Cases) began in 2015, with numerous cases filed in both federal and state court including both class actions and individual cases involving thousands of plaintiffs. The complex procedural history included scores of motions to dismiss, extensive discovery, hundreds of opinions and orders, and various appeals both to the United States Court of Appeals for the Sixth Circuit and to the United States Supreme Court.[6] Plaintiffs—who include children, adults, property owners, and business owners—allege that they were exposed to lead, legionella, and other contaminants from the municipal water supply.[7] The defendants include City and State government officials, hospitals, and private engineering companies.
Settlements
On November 10, 2021, the United States District Court granted final approval of a partial settlement with many of the defendants, including the State of Michigan and individual state officials; the City of Flint, Flint’s City Emergency Managers, and several City employees; and certain other defendants.[8] The unique comprehensive settlement involves a “hybrid structure”—addressing individually represented persons and minors, unrepresented claimants, and also a class resolution component for unrepresented adults.[9] Appeals challenging the settlement were resolved on March 17, 2023, when the United States Court of Appeals for the Sixth Circuit affirmed the district court’s decisions.[10]
The settlement establishes an administrative compensation program that provides settlement opportunities to 30 categories of individuals and entities for a wide range of injuries and damages if claimants meet the eligibility criteria. Eligible claimants include:
every person demonstrating exposure to Flint water while a minor child—with award amounts varying based largely on lead levels demonstrated by blood or bone testing or by exposure at residences with documented lead or galvanized service lines or high lead levels as recorded in water testing;
exposed adults with qualifying lead levels based on blood or bone lead testing or qualifying injuries;
qualifying residential property owners, renters, or others responsible for paying Flint water bills; and
qualifying business owners impacted during the relevant period.[11]
The eligibility requirements, compensation process, timeline, and award amounts are based on “objective factors such as age, exposure to the water, lead test results, specific identified injuries, property ownership or lease, payment of water bills, and commercial losses”—and compensation is the same for similarly situated individuals and entities regardless of whether they are represented or not or are a member of the class.[12]
The settlement is structured such that the majority of funds (79.5 percent) goes to those who were minors at the time of their exposure to Flint water—with those minors with test results showing high lead levels receiving the highest relative awards. Under the settlement’s Compensation Grid, a qualifying blood lead test must have been taken during a specified time period during the water crisis, or a qualifying bone lead test using an X-Ray fluorescence (XRF) device optimized to measure bone lead in vivo in humans may have been taken during the period up to 90 days after the date of the Preliminary Approval Order.
In 2023 and 2024, additional settlements were reached with other defendants, adding additional funds available for distribution to qualifying claimants.
Status of the Settlement Process
The settlement administrator received approximately 46,000 claim packages (some claimants submitted more than one claim package and there are duplicates so the number of actual claimants is less). Notices to claimants advising them of the settlement category(ies) they qualify for, and/or of deficiencies found in their claims, have been distributed throughout 2023 and 2024, and the claims administration process is close to completion. The value of an approved claim is based on the number of claimants ultimately approved for each category, so final determinations of award amounts and issuance of payments will be made after the completion of the claims process.
Conclusion
The issues presented by the Flint water crisis and the resulting litigation and settlement may resonate in the coming years. Gallup reports that pollution of drinking water is Americans’ top environmental concern,[13] and lead exposure remains a significant issue in many municipalities across the country. According to the U.S. Centers for Disease Control and Prevention (“CDC”), lead “can be harmful to human health even at low exposure levels” and “[n]o safe blood level has been identified for young children.”[14] The Environmental Protection Agency (“EPA”) reports that lead pipes, faucets, and fixtures are the most common sources of lead in drinking water and that lead pipes that connect homes to the water mains (service lines), which are more likely found in older cities and in homes built before 1986, “are typically the most significant source of lead in water.”[15]
The EPA recently issued a final rule titled National Primary Drinking Water Regulations for Lead and Copper: Improvements (LCRI), which would require drinking water systems to replace lead and certain galvanized service lines, remove the lead trigger level, and lower the lead action level from 0.015 mg/L to 0.010 mg/L.[16] The rule has been challenged in court.[17]
[1] whitehouse.gov/briefing-room/statements-releases/2023/11/30/fact-sheet-biden-harris-administration-announces-new-action-to-protect-communities-from-lead-exposure; epa.gov/ground-water-and-drinking-water/lead-service-lines
[2] In re Flint Water Cases, 960 F.3d 303, 311-12 (6th Cir. 2020).
[3] Id. at 310.
[4] Id.
[5] Id. at 316, 319.
[6] In re Flint Water Cases, 499 F. Supp. 3d 399, 411-412 (E.D. Mich 2021).
[7] Id. at 408.
[8] In re Flint Water Cases, 571 F. Supp. 3d 746 (E.D. Mich. 2021).
[9] In re Flint Water Cases, 499 F. Supp. 3d 399, 409 (E.D. Mich. 2021).
[10] In re Flint Water Cases, 63 F.3d 486 (6th Cir. 2023).
[11] In re Flint Water Cases, 499 F. Supp. 3d 399, 408; Flint Water Cases (FWC) Qualified Settlement Fund Categories, Monetary Awards, and Required Proofs Grid (11/11/20) (“Compensation Schedule”), In re Flint Water Cases, 16-cv-10444, ECF No. 1319-2.
[12] In re Flint Water Cases, 499 F. Supp. 3d 399, 408.
[13] news.gallup.com/poll/643850/seven-key-gallup-findings-environment-earth-day.aspx.
[14] www.cdc.gov/lead-prevention/prevention/drinking-water.html.
[15] federalregister.gov/documents/2024/10/30/2024-23549/national-primary-drinking-water-regulations-for-lead-and-copper-improvements-lcri.
[16] Id.
[17] See American Water Works Ass’n v. United States Environmental Protection Agency, et al., No. 24-1376, (D.C. Cir. Dec. 13, 2024).
With Executive Orders, President Trump Reshapes Federal Environmental and Energy Policy
The first day of any presidential administration is filled with both ceremony and bureaucracy. The first day of the second Trump Administration was no different.
In his first several hours as president, President Trump began reshaping the government through dozens of executive orders (EO). We summarize the initial orders and memoranda — many of them anticipated — impacting the energy and environmental spaces.
Revoking Prior Executive Orders
Upon taking office, presidents use executive orders to shape their Administration and announce policy preferences. However, policies made by executive order are often overturned by subsequent Administrations. When the first Trump Administration took office, we analogized executive order-based policies to the straw houses constructed in the “Three Little Pigs” children’s story.
Continuing recent practice, President Trump immediately issued an executive order disavowing many Biden Administration executive orders. Revoked orders in the energy and environmental space include:
Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government). (A discussion of work relying on EO 13985 is here.)
Executive Order 13990 of January 20, 2021 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis).
Executive Order 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad). (Grants under the Justice40 Programs established under EO 14008 are discussed here.)
Executive Order 14027 of May 7, 2021 (Establishment of the Climate Change Support Office).
Executive Order 14037 of August 5, 2021 (Strengthening American Leadership in Clean Cars and Trucks).
Executive Order 14052 of November 15, 2021 (Implementation of the Infrastructure Investment and Jobs Act).
Executive Order 14057 of December 8, 2021 (Catalyzing Clean Energy Industries and Jobs through Federal Sustainability).
Executive Order 14082 of September 15, 2022 (Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022).
Executive Order 14091 of February 16, 2023 (Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government).
Executive Order 14094 of April 6, 2023 (Modernizing Regulatory Review). (Guidance issued under EO 14094 is discussed here.)
Executive Order 14096 of April 21, 2023 (Revitalizing Our Nation’s Commitment to Environmental Justice for All).
The Presidential Memorandum of January 6, 2025 (Withdrawal of Certain Areas of the Outer Continental Shelf from Oil or Natural Gas Leasing).
Regulatory Freeze
President Trump issued a “Regulatory Freeze Pending Review” for all rules forwarded to the Federal Register for publication and made available for inspection but not yet published or effective. This action was expected. However, it may not be effective because the Administrative Procedure Act can require use of notice-and-comment rulemaking to undo rules that have been published but are not yet effective. (For more, see here.)
Government Structure
President Trump restored his first Administration’s policy to reclassify 10s of thousands of federal civil service positions in “policy-influencing” roles as at-will employees. The policy, formerly known as “Schedule F” and now called “Schedule Policy/Career,” aims to make it easier for the Trump Administration to replace certain employees with Trump-aligned workers. Under a Biden Administration rule, individual employees whose positions are reclassified may challenge that change before the federal Merit System Protection Board. The National Treasury Employees Union, which represents 150,000 federal employees, sued on Monday to block the order.
In other government employee news, the White House announced a hiring freeze for executive branch agencies other than the military and asked the director of the Office of Management and Budget to prepare a plan to “reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.” One factor that may drive attrition is a newly announced policy encouraging a return to in-person work with agencies directed to “as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in-person at their respective duty stations on a full-time basis.”
Climate
In his second inaugural address, President Trump promised to “drill, baby, drill.” To that end, the president signed an executive order, “Unleashing American Energy,” to set the federal government’s new energy policy.
The order announces a new policy to promote fossil fuel production, including on federal lands and in federal waters, aid critical mineral production, end federal support for electric vehicles, and calculate the domestic impacts of regulations without considering climate change effects to other countries. The order instructs federal agencies to review their programs, regulations, and actions to align with these policy goals.
The order revokes numerous Biden Administration orders and programs related to climate and the environment. Among these, it restarts approvals for liquified natural gas export terminals, terminates the American Climate Corps, and ends the Interagency Working Group on the Social Cost of Greenhouse Gases. The new Administration may also relax energy efficiency standards for motor vehicles and household appliances. (Conservative groups have long opposed energy efficiency requirements.)
The order instructs the US Environmental Protection Agency (EPA) to consider eliminating the social cost of carbon from federal consideration. It also commands EPA to consider whether to revise or revoke the Obama EPA’s endangerment finding that greenhouse gases threaten public health and welfare under the Clean Air Act. Public interest groups and others may challenge this action as inconsistent with the US Supreme Court’s decision in Massachusetts v. EPA.
In a separate order, Trump withdrew the United States from the United Nations Framework Convention on Climate Change, including the Paris Agreement. He also terminated the US International Climate Finance Plan.
Energy Development
A major plank of President Trump’s platform was to encourage development of fossil fuel resources. The United States currently produces more crude oil than any nation and is expected to produce more in 2025 than in 2024. President Trump’s orders aiming to rescind the Biden Administration’s renewable energy policies and promote fossil fuel development include the following:
Promoting fossil fuel development. The “Unleashing American Energy” order requires federal agencies to review activities that “impose an undue burden” on the development of domestic energy resources, specifically “natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.” Agencies must develop action plans within the next 30 days to address rules that potentially limit these resources.
Pausing disbursement of funds under the Inflation Reduction Act (IRA). The “Unleashing American Energy” order instructs all agencies to “immediately pause disbursement of funds” appropriated through the IRA and the Infrastructure Investment and Jobs Act. Specifically, the order highlights funds for electric vehicle charging stations through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Grant Program. Within 90 days, all agency heads must review grant, loan, and contract policies to align with the new energy policy.
The order leaves unresolved significant questions regarding countless ongoing projects, and whether funding will be available as expected. In the next 90 days, we expect to see significant lobbying by business, state elected officials, and members of US Congress to preserve projects funded or expecting funding to preserve the status of projects in their jurisdictions.
Speeding up project permitting. “Unleashing American Energy” addresses permitting with a goal of speeding up projects. The order instructs the Chairman of the Council on Environmental Quality (CEQ) to propose rescinding the current CEQ regulations implementing the National Environmental Policy Act (NEPA) and to work with agencies to revise their NEPA regulations. The impact of these changes depends on what revisions or replacement regulations, if any, the new Administration adopts. The order also advises agency heads to use all possible authority, including emergency authority, to expedite projects essential to national security. The Administration will submit a permitting reform proposal to Congress.
Fostering domestic development of critical minerals. “Unleashing American Energy” instructs agencies to identify and then revise or rescind regulations that impose an undue burden on domestic mining of critical minerals. The order instructs the director of the US Geological Survey to consider listing uranium as a critical mineral.
Declaring a National Energy Emergency. The “Declaring a National Energy Emergency” executive order cites the need to reduce energy costs as a rationale for promoting oil and natural gas production. In particular, the order requires the heads of federal agencies and executive departments to “identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess” to facilitate and expedite the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including on federal lands. It also calls for review of “obstacles to domestic energy infrastructure” from environmental protections like the Endangered Species Act or the Marine Mammal Protection Act.
Halting wind development. A memorandum titled “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” temporarily bans leasing any area of the Outer Continental Shelf for offshore wind development. The memorandum does not affect rights under existing leases, but the US Secretary of the Interior, in consultation with the Attorney General, is instructed to identify any legal basis for modifying these rights. The Secretary of Interior is also instructed to assess the environmental impact of onshore and offshore wind development (including on birds and mammals), the economic costs of intermittent electricity generation, and the effect of subsidies on wind industry viability. The Secretary of Interior, the US Secretary of Energy, and the Administrator of the EPA are also instructed to assess the environmental impact and cost of defunct and idle windmills and to review all federal wind leasing and permitting practices.
Promoting Alaskan energy development. Finally, “Unleashing Alaska’s Extraordinary Resource Potential” revokes restrictions on drilling and extraction and expedites the permitting and leasing of energy and natural resource projects in Alaska. The order particularly prioritizes the development of Alaskan liquified natural gas.
Environmental Justice
President Trump took aim at the Biden Administration’s environmental justice (EJ) policies. Starting with the now-repealed Executive Order 13985, the Biden Administration used a “whole of government” approach to address EJ issues. In EO 13985’s words, these issues resulted in “[e]ntrenched disparities in our laws and public policies” that have “denied … equal opportunity to individuals and communities” and that could be addressed by a “comprehensive approach” by the federal government to impact communities that are “underserved, marginalized, and adversely affected by persistent poverty and inequality.”
The Biden Administration’s efforts to address EJ issues were controversial with disputes ranging from already constructed projects being denied operating permits in Chicago, Louisiana’s so-far successful attack on EPA’s use of civil rights authorities, and whether and to what extent race and nonenvironmental impacts should affect environmental permitting.
The Trump Administration had been expected to curtail EPA’s focus on EJ. Under the banner of “Ending Radical and Wasteful Government DEI Programs and Preferencing,” an executive order declared that the “Biden Administration forced illegal and immoral discrimination programs, going by the name ‘diversity, equity, and inclusion’ (DEI) into virtually all aspects of the Federal Government.” This order directs agencies to “take immediate steps to end Federal implementation of unlawful and radical DEI ideology.”
The order directs federal agencies to, among other actions, terminate “to the maximum extent allowed by law” all DEI and EJ offices and positions. It also instructs agencies to tally past DEI and EJ expenses and to identify federal contractors and grantees who provided DEI work. While future efforts to rollback Biden era EJ initiatives are expected, the focus on EJ by many states is expected to continue.
California Water Infrastructure
Citing both ongoing wildfires in Southern California and also efforts conducted during the first Trump Administration, in a memorandum addressed to the Secretaries of the Interior and Commerce entitled “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California,” the president directed the Secretaries of Commerce and Interior to study and report back in 90 days on ways “to route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”
Foley Automotive Update 22 January 2025
Foley is here to help you through all aspects of rethinking your long-term business strategies, investments, partnerships, and technology. Contact the authors, your Foley relationship partner, or our Automotive Team to discuss and learn more.
Key Developments
Foley & Lardner assessed automotive supply chain implications of the U.S. Department of Commerce’s Bureau of Industry and Security (BIS) Final Rule prohibiting the import and sale of connected vehicles and related components linked to the People’s Republic of China (PRC) and Russia.
Foley & Lardner evaluated a number of import risks and opportunities under the Trump administration. On January 20, President Trump stated he intends to establish 25% tariffs on imports from Canada and Mexico on February 1. Trump on January 20 indicated he is “not ready” to impose universal tariffs, but he subsequently mentioned the possibility of a 10% tariff on Chinese imports, as well as potential levies on goods from the European Union. Multiple federal agencies were directed to evaluate U.S. trade policy and provide recommendations by April 1.
The Canadian government developed a draft list of C$150 billion ($105 billion) of U.S.-manufactured items that could be subject to retaliatory tariffs.
Unspecified sources in The Wall Street Journal suggest the Trump administration may pursue early renegotiation of the U.S.-Mexico-Canada (USMCA) trade agreement instead of maintaining the timetable for statutory review scheduled in 2026.
Foley & Lardner reviewed potential scenarios for the regulation of vehicle, engine, and equipment emissions under the new Trump administration.
President Trump on January 20 issued a broad Unleashing American Energy executive order directing all agencies to “immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 (Public Law 117-169) or the Infrastructure Investment and Jobs Act (Public Law 117-58), including but not limited to funds for electric vehicle charging stations.” The same order called for “terminating, where appropriate, state emissions waivers that function to limit sales of gasoline-powered automobiles,” and it revoked an August 2021 executive order that established a goal for 50% of all new light vehicle sales to be zero-emissions by 2030.
S&P Global Mobility assessed the automotive industry impact of the executive orders and announcements issued during Trump’s first day in office. Shifting policies in areas that include tariffs and emissions regulations are expected to present notable risk to suppliers in 2025.
Bain & Company analysis published this month suggests a growing number of automotive suppliers are at risk for liquidity challenges that will require OEM support to prevent insolvency.
Cox Automotive estimates total U.S. new-light-vehicle inventory reached 2.88 million units at the start of January 2025, representing a 75 days’ supply industrywide and an increase of 18% compared to January 2024.
Foley & Lardner provided an overview of the National Highway Traffic Safety Administration’s (NHTSA) final rule formalizing its whistleblower program under the Motor Vehicle Safety Whistleblower Act.
Auto industry consolidation may increase in the coming decade, due to factors that include the high development costs for automated, autonomous and software-defined vehicles, as well as increased competition from Chinese automakers. Certain legacy automakers may experience a “slow contraction” as they eliminate brands, close plants, and exit underperforming markets.
Market research firm Gartner predicts several North American and European auto plants are at risk of being closed or sold in 2025, as automobile brands struggle with overcapacity and price competition.
The China Association of Automobile Manufacturers (CAAM) estimates China’s automotive exports rose 19% year-over-year in 2024, and exports across all engine types are forecast to rise by 5.8% YOY to 6.2 million units in 2025. CAAM predicts vehicle sales within China will increase 4.7% YOY to 32.9 million units in 2025, from sales of just under 23 million units in 2024. The nation’s domestic battery electric vehicle (BEV) and plug-in hybrid electric vehicle (PHEV) sales are projected to rise 24.4% in 2025, compared to a jump of 35.5% in 2024.
New vehicle registrations in the European Union reached 10.6 million units in 2024, up by 0.8% YOY, according to analysis from the European Automobile Manufacturers’ Association (ACEA). In 2024, registrations of BEVs fell by 5.9%, PHEV registrations fell by 6.8%, and hybrid-electric registrations increased 20.9%.
OEMs/Suppliers
Chrysler owner Stellantis, in a January 9 brief, asked a California federal judge to preserve its lawsuit accusing the United Auto Workers of making an unlawful strike threat. Foley & Lardner recently provided a summary of the ongoing litigation between Stellantis and the UAW and its local chapters regarding the union’s threats to strike if Stellantis does not move forward with planned investment in its U.S. operations.
BMW, GM and Volkswagen reported their China sales volumes declined by double-digit percentages YOY in 2024.
Toronto-based Markdom Michigan Plastics Inc. will invest over $19 million to establish its first U.S. operations near Lansing, Michigan later this year.
Italian automotive design and engineering company Italdesign will invest $20 million to establish its new U.S. headquarters in Bloomfield, Michigan.
Nikkei Asia reports certain automotive suppliers from China are evaluating manufacturing opportunities in the U.S. in pursuit of growth opportunities.
Aptiv announced plans to separate its electrical distribution systems business into a new company.
Following the departure of former CEO Carlos Tavares, Stellantis has pursued plans to strengthen its U.S. brands by reviving certain Jeep and Dodge models. Separately, a Stellantis executive indicated that certain vehicle production decisions are on hold while the automaker awaits clarity on the Trump administration’s policies.
Electric Vehicles and Low Emissions Technology
Global sales of BEVs and PHEVs rose 25% to over 17 million units in 2024.
Global BEV sales in 2025 are forecast to represent 16% of total light-vehicle sales, according to analysis from S&P Global Mobility and BloombergNEF. The combined category of BEVs and PHEVs could rise 30% YOY to 22 million units globally in 2025, for a global light-vehicle market share of 27%. However, S&P expects significant cuts in North American BEVs, “with over 1.7 million units of dedicated BEV nameplate production removed from projections through 2032.”
Automotive News provided a summary of EV launch delays and production pauses.
The California Air Resources Board withdrew an Environmental Protection Agency waiver request to implement the Advanced Clean Fleets (ACF) rule. The ACF regulation would have required medium- and heavy-duty vehicle fleets in the state to adopt a phased transition to zero-emission vehicles. A separate rule, the Advanced Clean Trucks regulation, requires manufacturers to only sell zero-emission trucks in the state beginning in the 2036 model year.
UBS estimates Tesla could earn over $1 billion in compensation this year from competing automakers that pursue regulatory credits in response to stricter emissions standards in the European Union. The ACEA recently stated the industry’s most urgent action for EU leaders is identifying a solution for “compliance burden relief” in regard to 2025 CO2 emissions targets in the bloc, and pursuing realistic decarbonization goals that are not “penalty-driven.”
Lithium-ion battery prices are projected to decline 3% to roughly $112 per kilowatt-hour in 2025, compared to declines of 20% in 2024 and 13% in 2023.
Robert Bosch LLC, a part of the Bosch Group, will invest $13 million to create a Regional Hydrogen Research and Development Hub at the company’s headquarters in Farmington Hills, Michigan.
GM signed a multibillion-dollar supply deal with Norway’s Vianode for synthetic anode graphite battery materials in North America beginning in 2027. The supply agreement is expected to reduce reliance on imports of the critical mineral from China.
Panasonic Energy intends to eliminate reliance on Chinese suppliers in its U.S. vehicle battery production.
Rivian closed a loan agreement with the U.S. Department of Energy for up to $6.6 billion to support construction of a new manufacturing facility in Georgia.
European battery recycling company Envergia Inc. will invest $33 million to establish an EV battery recycling facility in Detroit.
Reuters reports Ford joint venture battery plant workers in Kentucky petitioned the National Labor Relations Board for a vote to unionize with the UAW.
Canada’s federal rebate program for qualifying EV purchases was abruptly paused this month when the program ran out of funding ahead of its original termination date of March 31, 2025. The Incentives for Zero Emissions Vehicles program (iZEV) received consumer rebate claims that surpassed $1 billion last year.
The Associated Press provided an update on the electric vehicle production plans and investments of electronics manufacturers, including Foxconn, Huawei Technologies, and Xiaomi.
Autonomous Technologies and Vehicle Software
The proportion of vehicles impacted by software-related recalls rose to 42% in 2024, up from 13% in 2023, according to a report in Forbes. The article estimated that as little as 13% of software-related recalls can be resolved through over-the-air (OTA) updates.
Over half of the U.S. survey respondents in Deloitte’s 2025 Global Automotive Consumer Study would be willing to pay more for connected services such as collision detection, automatic detection of vehicles and pedestrians, and anti-theft tracking. However, a significant percentage of respondents do not trust automakers, dealers, financial services providers, insurance companies or other entities to manage drivers’ connected vehicle data, and this could present challenges for companies hoping to monetize certain connected services.
Autonomous tech company Aurora announced a strategic partnership with Continental and NVIDIA to deploy driverless trucks at scale, beginning in 2027.
Market Trends and Regulatory
The Federal Trade Commission (FTC) reached a settlement with GM over claims the automaker collected and shared drivers’ location and driving data without consent. As part of the settlement, the FTC will ban GM from sharing drivers’ data with consumer reporting agencies.
The Alliance for Automotive Innovation filed a petition with the U.S. Court of Appeals for the District of Columbia to overturn a Biden administration regulation that requires nearly all new light vehicles to be equipped with “no-contact” automatic emergency braking (AEB) systems by 2029. The finalized AEB rule “requires all cars be able to stop and avoid contact with a vehicle in front of them up to 62 miles per hour and that the systems must detect pedestrians in both daylight and darkness.”
The International Longshoremen’s Association (ILA) and the United States Maritime Alliance (USMX) averted a strike and tentatively agreed to a six-year labor contract covering U.S. East and Gulf Coast ports.
NHTSA is investigating reports of engine failures in certain GM models that could affect over 877,000 vehicles produced between 2019 and 2024.
Analysis by Julie Dautermann, Competitive Intelligence Analyst
Trump Issues Sweeping Executive Order Declaring National Energy Emergency
On 20 January 2025, President Trump issued an Executive Order declaring a National Energy Emergency (Order).1 Under the National Emergencies Act,2 the president may declare a national emergency that allows the government to use statutory authorities that are reserved for times of national emergencies. In other words, a national emergency declaration does not suspend or change the law except as permitted by applicable statutory emergency authorities. The relevant statutory emergency authorities are discussed below.
In summary, the Order directs agencies to utilize their statutory emergency powers to speed up development and authorization of energy projects. Notably, however, the Order defines “energy” 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 such, the Order does not apply to solar, wind, batteries, or other energy sources not contained in the definition of “energy.”
The Order contains six substantive provisions:
Emergency Approvals. The Order directs the heads of executive departments and agencies to identify authorities to facilitate domestic energy production on Federal and other lands, including Federal eminent domain authorities and authorities under the Defense Production Act.3 This provision also directs the Environmental Protection Agency (EPA) to consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline.4
Expediting the Delivery of Energy Infrastructure. The Order directs agencies to use all relevant lawful emergency and other authorities to: (a) expedite the completion of authorized and appropriate energy projects; (b) facilitate energy production and transportation through the West Coast, Northeast, and Alaska; and (c) report on these activities to the Assistant to the President for Economic Policy.
Emergency Regulations and Nationwide Permits Under the Clean Water Act and Other Statutes Administered by the Army Corps of Engineers. The Order directs the heads of all agencies to identify planned or potential actions to facilitate energy production that may be subject to the Army Corps emergency permitting provisions and use these authorities to facilitate the nation’s energy supply.5 The Order also requires agencies to report on evaluations under this provision and directs the Army Corps and EPA to promptly coordinate with agencies regarding application of Army Corps permitting provisions.
Endangered Species Act (ESA) Emergency Consultation Regulations. The Order directs the heads of all agencies to identify planned or potential actions to facilitate energy production that may be subject to ESA emergency permitting provisions and use these authorities to facilitate the nation’s energy supply.6 The Order also requires agencies to report on evaluations under this provision and directs the US Fish and Wildlife Service and National Marine Fisheries Service to promptly coordinate with agencies regarding application of ESA emergency permitting provisions.
Convening the ESA Committee. The Order directs the ESA Committee to meet quarterly to review applications for exemption from requirements of the ESA (or to identify obstacles to domestic energy infrastructure, if the ESA Committee has no pending applications for review). This provision requires the Secretary of the Interior to determine an applicant’s eligibility for an ESA exemption within 20 days of receipt and the ESA Committee to grant or deny the application within 140 days of the Secretary’s eligibility determination.
Coordinated Infrastructure Assistance. The Order directs the Secretary of Defense, in collaboration with the Secretaries of Interior and Energy, to conduct an assessment of the Department of Defense’s ability to acquire and transport the energy, electricity, or fuels needed to protect the homeland and conduct operations abroad, with a focus on the Northeast and West Coast. This provision notes that the Secretary of the Army may address any of these vulnerabilities under the Army’s authority to undertake military construction projects in the event of a national emergency.7
While the Order clearly expresses the Trump Administration’s policy to encourage development of domestic conventional energy production, the affected agencies must still act within prescribed statutory limits. As such, it will take time to see how future legal challenges will shape the Order’s ultimate impact on the permitting and siting of future conventional energy projects throughout the United States.
Our multidisciplinary teams are advising a wide range of clients across the energy industry on the critical changes announced and soon-to-be-implemented by the new Trump Administration, including policy priorities, impacts to permitting and regulatory processes, environmental reviews, and the impacts of recent Supreme Court decisions like Loper Bright on future agency actions.
Footnotes
1 https://www.whitehouse.gov/presidential-actions/2025/01/declaring-a-national-energy-emergency/
2 See 50 U.S.C. 1601 et seq.
3 See 50 U.S.C. 4501 et seq.
4 As authorized under 42 U.S.C. 7545(c)(4)(C)(ii)(III).
5 As authorized under 33 U.S.C. 1344; 33 U.S.C. 403; 33 U.S.C. 1413.
6 As authorized under 50 C.F.R. 402.05; 16 U.S.C. 1531 et seq.
7 As authorized under 10 U.S.C. § 2808.
Additional Authors: Tim L. Peckinpaugh, Andrew H. Tabler, Varu Chilakamarri
EPA Proposes to Clarify Supplier Notification Requirements for TRI-Listed PFAS
The U.S. Environmental Protection Agency (EPA) proposed on January 17, 2025, to clarify the timeframe for when companies must first notify a customer that one of its mixtures or trade name products contains a per- or polyfluoroalkyl substance (PFAS) listed on the Toxics Release Inventory (TRI). 90 Fed. Reg. 5795. The National Defense Authorization Act for Fiscal Year 2020 (NDAA) adds certain PFAS automatically to the TRI beginning January 1 of the year following specific triggering events. According to EPA’s January 17, 2025, press release, EPA is proposing the rule in response to questions from industry regarding the effective date of supplier notifications for PFAS added to the TRI pursuant to the NDAA. Stakeholders questioned whether the supplier notification requirements for such PFAS begin on January 1, when the PFAS are added to the statutory TRI chemical list, or upon EPA completing a rulemaking to include the added PFAS in the Code of Federal Regulations. EPA states that the proposed rule would clarify that the supplier notification requirement for these PFAS starts immediately when they are added to the TRI (January 1) by explicitly defining PFAS added to the TRI by the NDAA as TRI chemicals. EPA notes that as TRI chemicals, they are immediately covered by the TRI regulation’s supplier notification provision, as well as all other TRI reporting requirements. Supplier notifications must begin with the first shipment of the calendar year in which the chemical addition to the TRI is effective. Comments are due February 18, 2025.
A Look at the Sustainability Aspects of the EU-Mercosur Free Trade Agreement
In December 2024, the EU and the Southern Common Market (Mercosur), which comprises of Argentina, Bolivia, Brazil, Paraguay and Uruguay,concluded negotiations on an EU-Mercosur partnership agreement, with the deal creating a free trade agreement (FTA) between the regions.The EU-Mercosur FTA follows an ongoing EU policy to negotiate sustainability provisions for EU FTAs.
Chapter on Trade and Sustainable Development
The FTA incorporates a chapter on Trade and Sustainable Development (TSD chapter) containing labour and environmental provisions that are strongly based on the existing multilateral frameworks (e.g. conventions of the International Labour Organization (ILO) and multilateral environmental agreements). The TSD chapter, originally announced in 2019, contains limited new and binding sustainability commitments by the EU and Mercosur (the parties).. Nevertheless, it does incorporate certain key provisions, such as a requirement that parties do not weaken, derogate from, fail to effectively enforce or misapply environmental or labour protection to encourage trade or investment.
Importantly, the TSD chapter is excluded from the scope of the general dispute settlement mechanism of the FTA. Instead, the TSD chapter contains its own dispute resolution mechanism. Noticeably, and contrary to the general dispute settlement mechanism, the TSD chapter does not provide for the suspension of concessions in case of breach (i.e. the retaliatory reversal of a benefit arising under the FTA). It therefore appears less easily enforceable than other parts of the FTA.
The Trade and Sustainable Development Annex
The FTA also incorporates a new annex to the TSD chapter, negotiated after 2019, which brings clarifications on the TSD chapter. It also specifically entrusts a sub-committee on trade and sustainable development created by the TSD chapter with monitoring its effective implementation, as well as that of listed multilateral agreements (including the Paris Agreement, conventions on hazardous chemicals and waste, and various ILO conventions and protocols).
The EU and Mercosur commit not to weaken protection afforded in their environmental laws, and to implement measures to prevent deforestation and stabilise or increase forest cover from 2030. They will collaborate in designing initiatives that support sustainable interregional value chains.
Within a year of the entry into force of the FTA, the parties will also establish a list of products from Mercosur countries deemed to contribute to forest and vulnerable system preservation. Such products should be given trade incentives by the EU (possibly including preferential EU market access).
A key aspect of the annex is that the EU recognises that the FTA and actions taken to fulfil it will be favourably considered in its risk classification of countries. As such, Mercosur countries could receive preferential treatment over non-Mercosur countries as part of the implementation of the EU Deforestation Regulation (EUDR).
The annex also provides that documentation, licenses, information and data from certification schemes and traceability and monitoring systems recognised, registered or identified by Mercosur countries must be used as a source by EU authorities to verify compliance of products with EU traceability requirements (this could e.g. be the case for the purposes of the EU Corporate Sustainability Due Diligence Directive (CS3D).
In addition, the FTA incorporates a new provision specifying that remaining part of the United Nations Framework Convention on Climate Change and its Paris Agreement is an “essential element” of the FTA.
A Real Sustainability Commitment?
The EU-Mercosur FTA constitutes a new stage in the evolution of TSD chapters incorporated in EU trade agreements since the conclusion of the EU-Korea FTA in 2009. The precise normative value of sustainability commitments under the EU-Mercosur FTA remains unclear. However, it appears that there could be concrete consequences for the implementation of key EU legislation, such as the EUDR or the CS3D. Overall, the FTA constitutes an opportunity for companies in both blocs, as well as insight into future policies of their governments.
The negotiated text now needs to be ratified by both the EU and Mercosur. The path ahead in the EU seems unclear. Some EU Member States may argue that it constitutes a so-called “mixed agreement” extending beyond the EU’s exclusive competences, for which approval is needed in each of the EU’s 27 Member States (thus rendering ratification more complex). Furthermore, some Member State governments have expressed their outright opposition to the FTA’s adoption.
Other EU FTAs
On 17 January 2025, the European Commission and Mexico reached an agreement to modernize the existing EU-Mexico Global Agreement, including new sustainability provisions. Additionally European Commission president Ursula von der Leyen has also identified sustainability as an objective as part of the recent relaunch of trade negotiations with Malaysia.