Early Assessment of the Effect of President Trump’s New Executive Orders on FERC Infrastructure Projects

On January 20, 2025, and throughout his first week in office, President Trump signed a series of executive orders (EOs) outlining his priorities for the domestic energy industry and setting forth policy preferences that rebuke former President Biden’s focus on mitigating the effects of climate change and safeguarding environmental justice communities. Although the energy-related EOs that have been issued to date have been light on specific policy directives, they evince an administration that is focused on expanding the production of fossil fuels and skeptical of the prior administration’s efforts to support the growth of renewable and zero-carbon resources.

While the Akin team is continuing to assess the impact of the EOs on the energy industry, this article reviews the potential impact of these EOs on the Federal Energy Regulatory Commission (FERC), an agency with statutory authority over the permitting of interstate natural gas pipeline infrastructure and liquefied natural gas (LNG) terminals, as well as related authority granted to the U.S. Department of Energy (DOE) to authorize LNG exports.

Unlike DOE, which is led by a cabinet-level Secretary and subject to Presidential directives in EOs, FERC is an independent agency that has taken the view that it need not follow all executive directives. However, the agency’s Chair, who traditionally is of the same political party as the President, often incorporates the current administration’s policy preferences into agency decision-making.¹ On his first day in office, President Trump appointed sitting Commissioner Mark Christie, a Republican, to helm the agency as Chair, displacing former Chair Willie L. Phillips, a Democrat. Commissioner Phillips has not yet announced his future plans, although removed Chairs often resign before their terms conclude.

The following EOs appear to have the greatest potential to impact FERC natural gas infrastructure policy:

• Declaring a National Energy Emergency: This EO provides that the country has inadequate resources to identify, lease, develop, produce, transport, refine, and generate energy and critical minerals, and identifies the need for a more “reliable, diversified, and affordable supply of energy” to support civilian life and military preparedness.
  • Section 1 of the EO, on Purpose, states that the “integrity and expansion of our Nation’s energy infrastructure – from coast to coast – is an immediate and pressing priority for the protection of the United States’ national and economic security.” It also notes that the U.S. “has the potential to use its unrealized energy resources domestically, and to sell to international allies and partners a reliable, diversified, and affordable supply of energy.” These statements are clear references to the construction of pipeline infrastructure and to export of LNG, which are two areas where FERC, along with DOE, is a primary regulator under the Natural Gas Act (NGA).
  • Section 3(a) of the EO directs federal agencies to “identify and use all relevant lawful emergency and other authorities available to them to expedite the completion of all authorized and appropriated infrastructure, energy, environmental, and natural resources projects that are within the identified authority of each of the Secretaries to perform or to advance.” Again, while FERC is not led by a cabinet Secretary-level official, the FERC Chair could direct agency personnel to act more expeditiously in approving pending projects, or in authorizing notices to proceed with construction of approved projects. While this process is multi-layered and subject to interweaving statutory schemes, the Chair could direct agency personnel to focus on certain projects to expedite their approvals. Moreover, other sections of the EO direct the heads of agencies responsible for administrating those other statutes, such as the U.S. Army Corps of Engineers and Department of the Interior, to take actions to expedite their applicable permitting regimes under other federal statutes such as the Clean Water Act and Endangered Species Act.
  • The EO also highlights regions of the country that have been hostile to fossil fuel infrastructure development, such as the West Coast and Northeast. In Section 7, the EO calls for the Secretaries of the Interior, Energy and Defense to review vulnerabilities in those areas created by insufficient transportation and refining infrastructure in order to provide “coordinated infrastructure assistance.” The EO is unlikely to resolve regional resistance to energy infrastructure, particularly natural gas pipelines, but it puts a stake in the ground in support of project developers and future projects.
• Unleashing American Energy: The totality of this EO is to rescind Biden-era policies that promoted the consideration of climate change in agency decision-making. Among other things, this EO declares the encouragement of energy exploration and production to be a core policy and provides that “all regulatory requirements related to energy are grounded in clearly applicable law.” It also directs “the global effects” of any rule to be evaluated “separately from its domestic costs and benefits,” a reference to the Social Cost of Greenhouse Gases, and revokes several Biden-era EOs focused on mitigating the effects of climate change, including EO 13990 of January 20, 2021 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis) and EO 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad). Accordingly, the EO directs disbandment of the Interagency Working Group on the Social Cost of Greenhouse Gases established pursuant to EO 13990 and directs the Administrator of the Environmental Protection Agency to consider eliminating the “social cost of carbon” from any federal permitting or regulatory decision.

In addition, this EO directs the Secretary of Energy to restart DOE’s review of applications of LNG export projects. In assessing the “public interest” to be advanced by the export of LNG, a term provided for in NGA Section 3, but not defined by the statute, the EO directs the Secretary to “consider the economic and employment impacts to the United States and the impact to the security of allies and partners that would result from granting the application.”

The EO also revokes the Carter-era EO 11991 of May 24, 1977 (Relating to Protection and Enhancement of Environmental Quality), and directs the Chairman of the Council on Environmental Quality (CEQ) to propose rescinding CEQ’s National Environmental Policy Act (NEPA) regulations found at 40 C.F.R. 1500 et seq., and then coordinate a working group amongst federal agencies to implement consistent NEPA regulations that prioritize efficiency and certainty. For those projects deemed by an agency head to be “essential for the Nation’s economy or national security,” the agency is directed to “use all possible authorities, including emergency authorities, to expedite the adjudication of Federal permits,” and to “work closely with project sponsors to realize the ultimate construction or development of permitted projects.”

• • FERC has a labored history with incorporating climate change considerations into its decision-making process for pipeline and LNG infrastructure projects assessed under the NGA. The agency attempted to issue a policy statement in 2022 making climate change a cardinal element of its statutory “public interest” determination under NGA Sections 3 and 7 that it was forced to walk back following political and industry blowback. Chairman Christie was critical of those efforts and remains vocally opposed to reading climate change considerations into the NGA. Hence, the agency likely would adopt a similar policy even without the EO in place. Rather, FERC is more attuned to following directives from the U.S. Court of Appeals for the District of Columbia Circuit (C. Circuit), which has endorsed FERC’s policy of declining to use the social cost of carbon to influence its permitting decisions.²
  • More complicated is what the EO will mean for FERC’s regulations implementing NEPA. FERC’s regulations explicitly supplement the CEQ regulations, which were found by the D.C. Circuit in November 2024 to be non-binding guidance.³ FERC has been in a holding pattern with respect to potential changes to its NEPA regulations since the CEQ’s regulations were revised by Presidents Biden and Trump in 2020, 2023 and 2024, and since the Fiscal Responsibility Act of 2023 made statutory changes to NEPA. We will address the meaning of the EO on LNG exports in a later alert.
• Unleashing American Energy and Ending Illegal Discrimination and Restoring Merit-Based Opportunity: Collectively, these two EOs revoke prior presidential actions that set the United States’ policies on environmental justice and the protection of environmental justice communities. This includes EO 12898 of February 11, 1994 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), EO 13990, EO 14008 and EO 14096 of April 21, 2023 (Revitalizing Our Nation’s Commitment to Environmental Justice for All). In addition, the EO Ending Radical and Wasteful Government DEI Programs and Preferences directs federal agencies to terminate all “environmental justice” offices and positions.
  • Incorporating principles of environmental justice into FERC decision-making had been a hallmark policy of former Chairman Phillips, who held the agency’s first roundtable on environmental justice in 2023. Under former Chairman Richard Glick, also a Democrat, the agency also created a senior-level position devoted to environmental justice and sanctioned an Environmental Justice and Equity Group within the FERC Office of General Counsel to help align FERC’s activities with environmental justice and equity principles. FERC has since removed refences to its Senior Counsel for Environmental Justice and Equity position from its website and stripped the staff member in that position of that title.
• Unleashing Alaska’s Extraordinary Resource Potential: This EO declares the policy of the United States to include the expedition of permitting and leasing of energy and natural resource projects in Alaska, as well as to prioritize the state’s LNG potential, including the sale and transportation of Alaskan LNG at home and abroad. Among other things, the EO orders the heads of all executive departments and agencies to “prioritize the development of Alaska’s LNG potential, including the permitting of all necessary pipeline and export infrastructure related to the Alaska LNG Project.”
  • FERC has already authorized the Alaska LNG project under NGA Section 3, which consists of LNG terminal facilities capable of producing 20 million metric tons per year for export as well as an approximately 800-mile feeder pipeline to transport gas from Alaska’s North Slope to the Kenai Peninsula. This decision was upheld in the D.C. Circuit. A parallel decision by DOE authorizing LNG exports from the terminal is still pending before the court. If the project ever reaches a Final Investment Decision to break ground, this EO provides grounds for FERC to expedite its notices to proceed with construction.

While not as enduring as a statute or regulation, an EO, when issued under a valid claim of authority, has the force and effect of law once published in the Federal Register. Agencies may be bound to enforce them, but they can only apply an EO’s directives in a manner consistent with their own statutory and regulatory obligations. However, there often is sufficient room for a president to infuse policy preferences in how an agency complies with these laws, which is what can give an EO a particular effect. In the case of FERC, the Chair serves as the administrative head, overseeing its executive and administrative operations, including management of the agency’s budget, personnel decisions and organizational structure and operation. Typically, the Chair will set the agency’s agenda and decide which cases, policies and issues are prioritized and brought before the commission for a vote or discussion. They also serve as the official representative of the agency before Congress, the public and other government agencies.

There is no reason to expect Chairman Christie not to implement the priorities set forth in the EOs discussed above. However, the direction provided by Chairman Christie may be short-lived. Unless renominated by President Trump, his term expires in June 2025. Moreover, unless Commissioner Phillips resigns, the agency will continue to have a three-Democrat majority / two-Republican minority until mid-2026, which could stymie the implementation of certain policies expressed by President Trump in these recent EOs and those that may be to come.

Akin is tracking all of President Trump’s EOs here, which provides insights as the orders relate to multiple disciplines within the Federal government and economy at large.

^{1 Certainly, during the Biden Administration, FERC created new positions specifically focused on environmental justice in furtherance of the prior President’s goals set forth in EOs now revoked by President Trump. Similarly, during President Trump’s first term in office, former FERC Chairman Kevin McIntyre signed a Memorandum of Understanding amongst various heads of federal departments and agencies to implement EO 13807, which required Federal agencies to process environmental reviews and authorization decisions for “major infrastructure projects” as One Federal Decision. Former President Biden revoked EO 13807 on his first day in office through issuance of EO 13990.}

^{2 See e.g., Citizens Action Coal. of Indiana, Inc. v. FERC, Case No. 23-1046 (D.C. Cir. Jan. 7, 2025); Ala. Mun. Distribs. Grp. v. FERC, 100 F.4th 207, 214 (D.C. Cir. 2024); Ctr. for Biological Diversity v. FERC, 67 F.4th 1176, 1184 (D.C. Cir. 2023).}

^{3 Marin Audubon Soc’y v. FAA, 121 F.4th 902 (D.C. Cir. 2024).}