That Donald Trump’s first-day fusillade of executive orders included the declaration of a national energy emergency wasn’t all that shocking given his intensity level on everything from birthright citizenship to mass deportation.
What was genuinely surprising, though, was that, in addition to his usual target of California, the emergency order also singled out the Northeast — a region that’s a smidgen short of solidly blue but one that usually avoids Trump vitriol.
All of which has led to a host of questions, including: We have an energy emergency? What IS an energy emergency? What does this mean? And, perhaps most specifically, could the president force the states in this region to increase their use of the very fossil fuels they are working to replace with clean energy?
“I’m sure the answer [to the final question] is going to be yes. I don’t know if this executive order is the best way to do that,” said Josh Macey, an associate professor at Yale Law School who specializes in energy and environmental law with an emphasis on grid reliability and the transition to clean energy. “It’s very unclear to me that this emergency order is more than gesturing at future administration policies that will more specifically try to help fossil fuel resources.”
Few are willing to speculate about Trump’s motivations, but scholars and environmental experts interviewed for this story believe the basis for the order is questionable.
“What is the emergency?” asked Chris Edelson, an assistant professor of government at American University, who has just completed his second book on emergency presidential power and by his own admission is not well-versed in energy issues. He noted that there was no description of a specific immediate need. “There are times when presidents need to act when something sudden happens; a real emergency; something unexpected. I just don’t see the case made for that here. This looks like a political document.”
If it’s something that hasn’t happened yet, Edelson added, there are plenty of avenues for Congress to act.
“Do we have shortages now? No,” said Sen. Ryan Fazio, R-Greenwich and ranking member on the Energy and Technology Committee. “Electric rates are far too high for Connecticut residents and I’m very concerned that in 10 to 20 years, we’ll have shortages of energy.”
The emergency declaration results from a messy mix of opposing energy priorities, politics, money and an arcane, arguably poorly drafted, policy known as the National Emergencies Act, NEA.
What the executive order says
The emergency order — unambiguously titled “Declaring a National Energy Emergency” — is in the form of an executive order that states as its purpose: “The energy and critical minerals (“energy”) identification, leasing, development, production, transportation, refining, and generation capacity of the United States are all far too inadequate to meet our Nation’s needs.”
It identifies a litany of problems, such as a “precariously inadequate and intermittent energy supply, and an increasingly unreliable grid,” and then lays down its first round of blame: “These numerous problems are most pronounced in our Nation’s Northeast and West Coast, where dangerous State and local policies jeopardize our Nation’s core national defense and security needs, and devastate the prosperity of not only local residents but the entire United States population.”
But it indicates the real problem is in the future, not now. That notion of a future concern was reiterated by Chris Wright, the newly confirmed energy secretary. In his first initial order called Unleashing the Golden Era of American Energy Dominance, the section on the emergency declaration reads: “The Department will identify and exercise all lawful authorities to strengthen the nation’s grid, including the backbone of the grid, our transmission system. This is an imperative as we consider current and anticipated load growth on our nation’s electric utilities. Moreover, after two decades of very slow demand growth, electricity demand is forecast to soar in the coming years.”
It also blames perceived energy problems on the Biden administration broadly, which in fact increased oil and gas production. As of the most recent data, the U.S. is the world’s top crude oil producer — and the world’s largest producer for the past six years. The U.S. is also the top liquified natural gas exporter in the world.
And while the order states that “a reliable, diversified, and affordable supply of energy” is needed, its definition of energy notably omits the two largest renewable sources — solar and wind, as well as energy storage.
The emergency order was not Trump’s only attempt to redirect energy and climate policy. Another executive order puts a hold on almost all offshore wind projects, including new leases. The few operating projects seem to have been spared, as have been those under construction, which includes Connecticut’s one project — Revolution Wind. Some land-based wind is also halted. The Biden administration approved 11 offshore wind projects totaling 19 gigawatts of power, enough to have made a measurable addition to available power.
The order tasks several agencies with providing information in a month about emergency powers they can use that would seem to provide a glide path to energy infrastructure permitting and construction. Among the laws it notes could be skirted are the Clean Water Act (CWA), the Endangered Species Act (ESA), and it posits the use of eminent domain and the Defense Production Act to accomplish Trump’s goals —whatever they turn out to be.
Several experts and advocates said the simplest explanation is that the emergency order is a way to provide rewards for some of Trump’s biggest supporters: the fossil fuel industry. According to the Washington Post, he told a roomful of oil executives they should raise $1 billion for his campaign. In return he would roll back the Biden policies and regulations they found onerous. The pro-fossil fuel effort also mirrors what Project 2025 advocated in its long sections on energy policy.
“If any emergency exists, I think that it is continued over-reliance on fossil fuels, which is exactly what the purpose of the executive order is” said Christine Hicks, managing attorney of the clean energy program at Earthjustice, an environmental law advocacy organization. “The entire thrust of the emergency order is to promote dirtier, and also what we know to be more expensive, energy sources.”
That said, there are also some possible specific targets in the northeast region, and they involve natural gas.
Some possible targets
Most of the New England states and New York have policies in place to reduce their use of natural gas. While often described as having fewer greenhouse gas emissions than the carbon dioxide from oil or coal, natural gas has serious properties that contribute to climate change.
Natural gas is primarily methane, a potent greenhouse gas that, molecule for molecule, traps about 100 times more heat than carbon dioxide. That’s the heat that results in the global warming that in turn creates climate change. Methane dissipates faster than carbon dioxide but over about 20 years it traps about 80 times as much heat.
Natural gas pipelines can leak methane. Methane is also often flared off wells and other industrial operations.
Connecticut policy calls for a zero-carbon electric grid by 2040. Massachusetts, New England’s largest energy user, has one of the toughest energy goals in the nation with net-zero emissions economy-wide by 2050 and a plan to phase out natural gas use.
New York — also with a goal of net-zero emissions by 2050 — sits on large natural gas reserves in its part of the Marcellus Shale, but the state banned fracking for it in 2014 and strengthened that ban last year as part of a new tough climate law. A Texas company had tried to skirt the original ban using a new technique that was not covered. That technique is now prohibited.
All three states have successfully fought additional gas pipelines. It took New York eight years to stop the Constitution Pipeline that would have brought gas from Pennsylvania’s Marcellus Shale into eastern New York State. Local votes in Massachusetts stopped one pipeline, and a study commissioned by then Attorney General Maura Healey, now the governor, determined Massachusetts had no need for additional pipelines.
Currently Project Maple, a proposed enlargement of the energy delivery company Enbridge’s pipeline in Connecticut, Rhode Island and Massachusetts, is facing opposition. Connecticut environmental advocates also fought a new natural gas plant in Killingly that was eventually abandoned. At the same time, Connecticut’s Republican legislative leadership has repeatedly argued that the state should invest in more gas pipelines.
And there is LNG — liquified natural gas. There is an import terminal in Everett, Mass. adjacent to Boston, but it has capacity issues. There has been some chatter about establishing another terminal in Salem, Mass., adjacent to a large natural gas power plant there.
Former President Biden’s hold on reviews of LNG export projects were removed by Trump with an executive order hours after his inauguration. It’s unknown whether either would be used for export.
New England can face a natural gas crunch during extreme cold weather when the fuel is needed for both heating and electricity. A recent report by the Northeast Power Coordinating Council said New England and New York’s pipeline capacity could be tapped out in extreme prolonged winter weather. And indeed during this recent cold snap, the grid called on oil and even coal power as well as large amounts of imported power from Canada. But the grid operator has robust contingency plans for this sort of situation and has also repeatedly noted that even in winter the amount of rooftop solar in use in New England has taken the edge off the need for increased power sources for the immediate future.
The concern among some environmental advocates and political observers is that his singling out of the Northeast may have more to do with accessing more natural gas to sell to other countries, which would provide profit and leverage over them. It might also serve as an additional power source for energy-intensive operations such as AI, data centers and crypto mining, which the Trump family has a direct interest in. And, some suspect he is aiming for the creation of LNG export facilities.
Samantha Dynowski, the Sierra Club’s Connecticut director, who has been spearheading Connecticut opposition to Project Maple, is one of the people who believe the administration is targeting LNG exports.
“It’s a pretty absurd interpretation of what the U.S. needs — to go backwards to the technologies and resources we’ve been using for a century when our most abundant resource in the Northeast is offshore wind and we have really not even scratched the surface on solar. Those are the resources that are going to save consumers money, not the ones we’re already using that have delivered us the highest electricity prices in the nation,” Dynowski said.
Expansion of Enbridge’s pipeline for the purpose of exporting, she said, would make gas more expensive by putting the region in competition with the global market.
The rationale for more natural gas also may be pure politics and retribution. That’s the view of two authors of a recent post for the Environmental and Energy Law Program at Harvard called “Environmental and Energy Executive Orders: Initial Insights and What We’re Watching.”
“The order’s focus on these two regions (the Northeast and California) suggests the administration may intend to target states with clean energy policies the administration opposes, instead of focusing on reliability risks across the country,” they wrote.
Along with the order that blocks offshore wind, Macey said what the emergency order says to him is: “Let’s put a big thumb on the scale of the types of resources that were supportive of Trump’s presidential bid.”
Among the questions that leads to are: Could the emergency declaration enable the federal government to overturn New York’s fracking ban? Could it be used to build gas pipelines against state and local wishes? Could it force a state to accept an LNG terminal, even if it doesn’t want one?
Which all raises another question: What is a national emergency supposed to do, versus what it may be used to do?
There is a law for national emergencies
The National Emergencies Act, (NEA), came into existence in 1976 a few years before Jimmy Carter declared emergencies related to the Iran hostage crisis. Emergency declarations had been used before, including by Franklin Roosevelt in 1933, which was still on the books when the NEA was passed.
But the law that exists now, despite a slight update in 1983, is not specific about what constitutes an emergency. The President has to publicly say what specific powers he’s accessing. It’s supposed to remain in place for only a year unless the president renews it, while Congress has to review it every six months — which it almost never does — and can end it, though that’s subject to presidential veto. The Carter emergency along with one declared by George W. Bush after 9/11 are technically still in effect.
In the last Congress, Sen. Richard Blumenthal co-sponsored an unsuccessful effort to reform the statute in response to Trump declaring an emergency during his first term to fund the construction of a wall at the southern border. The Article One Act would have terminated a national emergency after 30 days if Congress did not pass a joint resolution approving it. As recently as last October, a coalition of advocacy groups sent a letter to congressional leaders asking that the law be reformed.
Under the NEA, a president cannot do anything he wants. There are about 150 statutory provisions that invocation unlocks. The Brennan Center at NYU Law School has sorted through them in a chart.
“Emergency powers were intended to give a president more flexibility to deal with sudden, unexpected acute crises that are moving too quickly for Congress to address, not chronic problems that are better left to the political process in the legislature,” Amy Stein, a professor at the University of Florida Levin College of Law said in an email. She has written extensively about energy emergencies. “Yet under the current law, Congress can do very little to prevent a President from exploiting the authorities.”
She said courts consistently defer to the president in national security matters unless they’re clearly unconstitutional. The Trump energy emergency “includes an important role for the president’s national security advisor, who could attest that certain environmental rollbacks were necessary for national security,” she said.
The most likely litigation she expects will come in challenges to the agency actions that may do things like speed permitting and pipeline approvals, waive clean water or endangered species act requirements or attempt eminent domain seizures.
Other legal experts are not certain that agencies will be responsible for final decisions.
“We may learn the answer to that in a few months, but we don’t know the answer now,” said Macey at Yale. But he agrees that the agency actions will provide the easiest challenges because they will have to explain why they did something.
“It would be seen as arbitrary and capricious to say we need to deviate from ordinary processes without explaining why that deviation is necessary to address the emergency,” he said. “It’s a legal challenge that involves challenging the individual decisions made pursuant to the emergency order, rather than the emergency order itself.”
Patrick Parenteau, professor emeritus and senior fellow for climate policy at Vermont Law School, said part of the reason to wait for agency actions is because they are subject to the rules of the Administrative Procedures Act. “Presidential orders are immune,” he said. “There’s all kinds of reasons why you can’t even attack them. So what you have to wait for is a specific proposal from an agency with authority to do it. Then you’ve got something; until then you don’t have anything.”
He predicted a “tsunami of lawsuits,” noting that the president doesn’t make law, Congress does, and the agencies administer permit programs through laws like the ESA and CWA.
He also pointed to a reference in the executive order to the Army Corps of Engineers making use of what’s called a nationwide permit for emergencies. “But here’s the thing — that nationwide permit is for disasters that threaten human life,” he said. “Just waving your arms around about a fictional energy emergency is not the basis for the Corps of Engineers invoking that nationwide permit, period. It’s just not.”
Most local advocates are largely still assessing how to approach the emergency order. A big question for them, as well as state leadership, may be whether the administration will try to override state policies and preferences.
Top state officials are also avoiding directly addressing it.
A spokesman for the New York Department of Environmental Conservation said it is too soon to determine the impact of the Executive Order and noted the climate legislation Gov. Kathy Hochul signed in December.
A spokesman for the Massachusetts Executive office of Energy and Environmental Affairs said that “administration’s effort to facilitate the transition away from fossil fuels continues.” Gov. Healey herself recently noted the state’s commitment to offshore wind and said “we’re watching closely what the president does. He’s issued some executive orders, but we’ll see what else comes of it.”
A spokesman for Gov. Ned Lamont said, “The governor continues to be concerned about energy supply and affordability in Connecticut and the region. That’s why he’s partnered with neighboring states to discuss ways to bring in more supply, particularly low carbon supply.”
The spokesman did not respond to the question of whether the president’s emergency declaration constituted a move to force through fossil fuel infrastructure that Connecticut and almost all of New England and New York are trying to stop using.
How far can the feds go?
Could the federal government, under an emergency declaration come in and overturn, say, New York’s fracking ban?
Parenteau said a flat no.
But Macey at Yale isn’t so sure. He explained that under current land use laws and provisions of the Federal Power Act, states have authority over the supply side of the energy sector — what is drilled or mined from the ground. He said there are people he works with who think there are constitutional reasons Congress could not overturn a fracking ban.
“I think those are unlikely to be convincing to current courts,” he said. If Congress was to pass a statute authorizing fracking in New York: “My view is that it would almost certainly be upheld in court.”
Could the federal government force a gas pipeline or other infrastructure to be built if a state doesn’t want it?
Macey said because it’s so unusual to use an emergency order to build a pipeline, there really isn’t any precedent to fall back on. And he said he was skeptical that an emergency order could just wash out local rules and zoning.
“But it’s not impossible,” he said.
The Federal Energy Regulatory Commission (FERC), which has to approve pipelines, and the Department of Energy do have authorities that could preempt local rules. The federal government essentially allows states to use federal laws like the CWA and could limit how the states use them.
“When it comes to pipelines, we currently think that various FERC approvals don’t preempt state and local laws,” he said. “But it is possible that an aggressive FERC could take a different position on that, and that courts would be sympathetic.”
Traditional Republican philosophy has included a strong belief in state’s rights. Fazio, the GOP lawmaker from Greenwich, said he didn’t have any insight on the specific legal issues. “We all have an obligation to uphold both the U.S. and state constitutions and federal and state law” he said. “I’ll have to take all that into consideration as we try to advance better energy policies.”
But perhaps the gnarliest of questions is whether there are legal grounds for states or others to argue that there just isn’t an energy emergency.
“You can; you can go to court,” said Edelson at American University. “The problem is, the courts are going to be really reluctant to weigh in.”
That’s because the NEA doesn’t define what an emergency is. “In an area like this, they tend to defer to the President,” he said.
Macey said it’s hard to know how a court would respond to the claim that this is not a genuine national emergency, because this authority hasn’t been used in this way before.
“If you think that there’s an energy emergency, it appears you would think it might be somewhat arbitrary to favor resources without explaining why those resources are more useful in addressing the emergency than others. But it’s hard to know how courts will respond to this,” he said. “We haven’t litigated this in the past.”