ENERGY TRANSITIONS IN THE TRUMP ADMINISTRATION AND BEYOND.

• Author: Klass, Alexandra B.

1. Introduction 241 II. President Trump's "Energy Dominance" 244 III. The Electricity Sector: The Limits of Federal Policy. 247 IV. The Transportation Sector: The Importance of Federal Policy. 253 V. Federal Public Lands and Federal Project Approvals: The Role of the Courts 259 VI. Conclusion 265 I. INTRODUCTION

   Soon after President Trump's election in November 2016, the Environmental, Natural Resources, and Energy Law Section of the Minnesota State Bar Association asked me to participate in a panel presentation entitled "Environmental and Energy Law and Policy Under a Trump Administration." During the session, which took place in January 2017, one speaker focused on environmental law and policy issues, another speaker focused on climate-specific issues, and I covered energy law and policy issues. At this point in time, we all had assumptions about the likely priorities of the Trump administration based on statements and promises made during the campaign, but detail was lacking. President Trump had already nominated Ryan Zinke to be Secretary of the Interior, Rick Perry to be Secretary of Energy, and Scott Pruitt to be the Environmental Protection Agency (EPA) Administrator, but the Senate would not approve the nominations until a few months later. We knew the Pruitt nomination did not bode well for continued enforcement of the nation's environmental protection laws, but the implications of a Secretary Zinke at Interior or a Secretary Perry at Energy were less clear. Indeed, Rick Perry had been the governor of Texas when that state undertook the largest build-out of wind energy and related transmission infrastructure in the nation to date. During the presentation, we discussed some of the more vulnerable Obama administration regulations and initiatives and made some predictions about regulatory rollbacks and their implications. At the time, it was a helpful exercise for me to review more specifically what the Presidentelect had said during the campaign on these issues, particularly those surrounding energy policy and energy projects, and consider the implications for the future,

   Over the next few months, I realized that there was a broader audience for this information. With no time to waste, President Trump quickly issued executive orders to substantially shrink national monuments like Bears Ears and Grand Staircase Escalante in Utah. The administration began the process of rolling back virtually every Obamaera regulation designed to reduce greenhouse (GHG) emissions and other pollutants from automobiles and power plants, minimize air and water pollutants from onshore and offshore oil and gas drilling, increase energy efficiency of appliances, and the like. Unlike other policy areas, such as immigration and international trade, where the administration was often at war with itself, in the environmental and energy realm, there was a clear focus to support fossil fuel development, withdraw from the Paris climate accords, reduce regulations on industry, slow-walk renewable energy development, limit the role of science in policymaking, and impede access to government information. (1) Moreover, not only was the policy focus clear, the implementation was swift, with immediate actions to stay or reverse existing regulations and replace them with new ones. With these environmental and energy policy issues so frequently in the news both domestically and internationally, a larger segment of the public began to pay attention to U.S. public lands, changes in the energy sector, and the role of climate change. With donations to environmental advocacy groups skyrocketing after President Trump's election, activity in the courts also accelerated, contributing even more to the increase in newsworthy events surrounding energy and environment.

   By spring of 2017, 1 was receiving an increasing number of requests to speak about these issues and created a presentation based on the initial one in January to discuss the impacts of the Trump administration on U.S. energy issues. Since that time, I have given this presentation, with regular updates, at a local high school; at liberal arts colleges in the United States; at universities in Sweden, Denmark, and Finland; and at U.S. law schools and universities around the country. At each presentation I was struck by the level of interest in energy issues as well as the depth of knowledge, even among high school and college students, about the U.S. energy system and what is at stake. During these several years of presenting this information, I have never had the opportunity to put in writing my thoughts on these presentations, and I am grateful for the opportunity to do so now as a result of this distinguished lecture at Lewis & Clark Law School.

   As I often stated at the beginning of these presentations, the topic of "U.S. Energy Transitions in the Trump Administration" is not as doom and gloom as it might be, particularly as compared to a presentation on "U.S. Environmental Issues in the Trump Administration." (2) This is because many aspects of energy production and use in the United States are shaped more by economics, technology, and state policy than by federal policy. Federal energy policy is critically important of course, but even a suite of federal policies to promote fossil fuels can run into opposition from powerful corporations, like electric utilities, that must also consider long-term economic trends, technology development, and costs to retail customers. Moreover, at least in the electricity sector, states also set energy policy in important ways, and it is an understatement to say that many states were not on board with the energy vision of the Trump administration. Finally, in its haste to enact its deregulatory agenda, the Trump administration often failed to comply with Congressional mandates and the procedural requirements of the Administrative Procedure Act, (3) resulting in frequent setbacks in the federal courts.

   Nevertheless, even when the Trump administration did not fully succeed in various aspects of its deregulatory agenda because of state or industry opposition or judicial roadblocks, it had a significant influence on the U.S. clean energy transition. This is because some areas, like transportation-related emissions, are more solidly within the realm of federal policy, and also because it takes massive amounts of time, funding, and personnel to challenge the continued regulatory assault on the nation's clean energy laws and regulations. This in turn diverts valuable resources away from forward-looking clean energy policymaking. Likewise, in promoting a regulatory agenda that attempted to lock in the long-term continued use of fossil fuels to produce energy, the Trump administration prevented the United States from serving in a leadership role on the world stage when it comes to energy transition. This has dire consequences for global climate change, not to mention the lost domestic clean energy jobs and other long-term economic benefits that come with that leadership role.

   This Essay will proceed to describe President Trump's priorities with regard to energy policy and the status of implementation with regard to the electricity sector, the transportation sector, energy development on public lands, and federal approvals of energy infrastructure projects. It ends on a somewhat hopeful note, recognizing that while the Trump administration certainly slowed the pace of a U.S. clean energy transition, the transition was not entirely stopped. Thus, the building blocks are there for the Biden administration to accelerate that transition, hopefully in time to minimize the U.S. contributions to global climate change and create a vibrant, clean energy economy. Just as important, a new administration that strongly embraces a clean energy transition can return the United States to its position as a leader for the rest of the world and help shape global action to address climate change.

2. PRESIDENT TRUMP'S "ENERGY DOMINANCE"

   During the 2016 presidential campaign and after taking office, President Trump consistently declared a goal of U.S. "energy dominance." (4) On one level, promises of U.S. energy dominance could be seen as simply another component of President Trump's "America First" political agenda. (5) However, by the time of the 2016 presidential election, the U.S. energy landscape had changed so dramatically in the prior ten years that the phrase could not simply be dismissed as campaign bluster. After decades of concern about U.S. energy security, dependence on oil from the Middle East, and dwindling supplies of natural gas, the "fracking revolution" that began in approximately 2007 had radically transformed the U.S. energy outlook. Where shortages of oil and natural gas once loomed large, abundance was now present. Implementation of new technologies like hydraulic fracturing and directional drilling opened up expansive U.S. shale reserves to oil and gas exploration, improving U.S. energy security and creating new export opportunities.

   For instance, prior to 2007, U.S. natural gas production was declining rapidly, and the industry was focused on building liquefied natural gas import terminals to ensure adequate supplies of natural gas for U.S. heating, electricity, and industrial uses. (6) By 2017, the United States had become a net exporter of natural gas, with major production centers in Texas and the Marcellus Shale region of Pennsylvania. (7) This made natural gas readily available at low prices that would stay low potentially for decades, allowing that fuel to compete directly with coal as a "baseload" fuel to generate electricity for the first time ever.

   As for oil, which dominates the transportation sector, more supply meant lower prices and transformed the United States from a major oil importer to a major oil exporter for the first time since the 1970s, when Congress had banned such exports to reduce the nation's dependency on oil from the...