Surfing the Wave of Executive Orders

As an old song says, “Mama Miá, here we go again!”  

To much fanfare, Trump has issued a slew of executive orders, many aimed at killing environmental regulations. As he portrayed his actions the day before, “Starting tomorrow, I will act with historic speed and strength and fix every single crisis facing our country.”  True, many people will see the executive orders in that light. But few executive orders have any immediate impact. They’re basically nudges to various agencies to carry out his agenda.  Presidents love issuing executive orders. It’s easy to do, and many people will credit the president with major accomplishment. But really, as someone recently said, an executive order is “just a memo on fancy letterhead.”

Admittedly, the executive orders cover an impressive range of subjects.  Some orders set the stage for politicizing the civil service and supporting Elon Musk’s budget-cutting recommendations. A cluster of orders involving the environment  covered the following subjects:

1. Halting spending under the IRA and other clean energy laws,
2. Speeding permitting of pipelines and other energy projects, especially coal, natural gas and shale projects
3. Opening-up offshore drilling
4. Repealing rules on electric vehicles
5. Opening the Arctic National Wildlife Refuge to drilling and speed the development of energy production from Alaska
6. Freezing wind energy development on public lands and offshore.
7. Withdrawing from the Paris Agreement.
8. Declaring a national emergency related to energy.

None of these were exactly surprises.  In most cases, the effect of the executive order is simply to direct an administrative agency to take some action, and nothing will change in the real world until the action has been taken. The two exceptions were withdrawal from the Paris Agreement and the freeze on windmill development on federal land and offshore.  Everyone knew that the withdrawal from the Paris Agreement was a foregone conclusion. The wind power freeze is likely to face immediate legal challenges.

Note that the final entry on the list is to declare a national emergency relating to energy.  There’s nothing to prevent Trump from doing so, but declaring the emergency only sets the stage for other actions by administrative agencies. These actions will have to be taken under specific statutes, and at this point it’s not clear that anything major is likely to happen as a result.

Although there are a couple of exceptions, then, nearly all of Trump’s actions are really statements about policy initiatives to be undertaken later by administrative agencies.  It will take a considerable amount of time for most of those initiatives to come to fruition, and they will then face judicial scrutiny.

One thing that no one can deny is that Trump is brilliant at political theater. People overlook the importance of that at their peril. But theater isn’t reality, and it remains to be seen how many of the grand gestures Trump made today will eventuate in significant policy changes.

Note: This post was updated to incorporate the late evening issuance of the executive orders, which had been forecast earlier.

administrative law, Climate Change, Energy, Executive Orders, public lands, Trump Administration