January 23, 2025 - President Donald Trump's executive order declaring a national energy emergency makes clear that the new administration will promote fossil fuel development. While some have questioned the need for the order, experts say the declaration's lack of policy specifics makes it unlikely to face any immediate legal roadblocks.

The Jan. 20 order lays the groundwork for the federal government to take several actions to facilitate the production and sale of a wide range of energy resources — defined as oil and refined products, natural gas and natural gas liquids, coal, biofuels, uranium, geothermal heat, "the kinetic movement of flowing water," and critical minerals.

That definition notably left out solar, wind and battery storage — an omission that has angered environmentalists, who see the measure as deliberately constructed to disadvantage renewables in favor of fossil fuels.

The order does not directly change federal energy policy. Instead, it calls for federal agencies to explore ways to boost domestic energy supply in accordance with Trump's declaration. For example, the order calls for the head of the US Environmental Protection Agency and the Secretary of Energy to consider issuing waivers allowing the sale of E15 fuel — gasoline blended with 15% ethanol — year-round to alleviate potential gasoline shortages. E15 sales are banned in most of the country during the summer months due to pollution regulations.

The emergency declaration also calls for federal agencies to use all lawful powers "to expedite the completion of all authorized and appropriated infrastructure, energy, environmental and natural resources projects" under their jurisdiction.

It specifically called for agencies to take action to facilitate the supply, refining and transportation of energy in and through the West Coast, the Northeast and Alaska.

As part of the push to accelerate energy development, Trump called for agency heads to identify actions that could be eligible for emergency permitting consideration by the US Army Corps of Engineers, as authorized under the Clean Water Act and other legislation.

He also ordered agencies to use an emergency consultation process laid out under the Endangered Species Act (ESA) to speed up environmental compliance.

The president also told the Interior Secretary to convene the Endangered Species Committee, which meets to rule on requests for an exemption from the ESA's consultation requirements, at least quarterly. That would be more frequently than the committee has historically met, said Robert Glicksman, a professor of environmental law at George Washington University.

Trump's order also requires the Interior Secretary to ensure the committee issues an initial determination on all exemption requests within 20 days and a final resolution within 140 days.

Legal Basis

Some activist groups have argued that Trump's designation of an emergency is legally questionable given the surge in US energy production — particularly oil and gas — in recent years. "No country on Earth has produced more oil and gas than America does today, so Trump's fake emergency is all about prioritizing profits at powerful fossil fuel companies at the expense of higher prices for American families," Tyson Slocum, director of Public Citizen's energy program, said in a Jan. 21 statement.

Legal analysts, however, say the National Emergencies Act gives the president wide latitude to declare an emergency, which likely precludes any opponents of the new policies from successfully blocking the executive order in court.

"As far as the statute says, Trump could declare an emergency because of the [Golden State] Warriors season," said Daniel Farber, a professor and director of the Center for Law, Energy and the Environment at the University of California, Berkeley, during an interview. "So, there don't seem to be any good grounds for challenging it."

Ted Kelly, director and lead counsel for US clean energy at the Environmental Defense Fund, echoed that assessment and suggested legal challenges will most likely come when the new administration moves to implement new policy as a result of the emergency order.

According to the Brennan Center for Justice at the New York University School of Law, the declaration of a national emergency gives the president 137 statutory powers, with another 13 powers made available if Congress makes such a declaration. Each of those attributions comes with its own rules, and Kelly said it would be easier for opponents of the president's agenda to challenge the policies under those provisions than to question the declaration itself.

"Each of the specific emergency powers has different specific findings that you need to make to use those powers," Kelly said during an interview. "And that's where each one would likely be questionable under the current circumstances."

For example, the Clean Air Act specifies that, for the EPA to issue an emergency waiver authorizing year-round E15 sales, there must be a temporary fuel shortage caused by an unusual situation such as a natural disaster, pipeline failure or act of God.

Kelly said that Trump's call for the EPA administrator to consider a year-round E15 waiver is legal. "But if they actually issue those waivers, I'd expect that to be very likely subject to challenge," he added.

Impact Potential

The order blasted former President Joe Biden for pursuing "harmful and shortsighted policies" that Trump said had led to a shortage of energy supply, threatened the stability of the power grid, raised domestic energy prices, and increased the nation's vulnerability to foreign adversaries.

"The United States' insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our nation's economy, national security, and foreign policy," Trump said in declaring the emergency.

Trump singled out the green-leaning West Coast and Northeast for being at particular risk of an energy shortfall, saying the regions' "dangerous state and local policies jeopardize our nation's core national defense and security needs."

Some analysts said it is unclear whether the declaration would do much to streamline energy project reviews. Thomas Hochman, infrastructure director at the Foundation for American Innovation, said alternative emergency processes under the National Environmental Policy Act have generally been used for situations involving "direct, imminent" emergencies.

"So, I don't really see what the key authorities are that the Trump administration could leverage just because they've issued an [executive order] that declares that energy emergency," Hochman said.

Farber also downplayed the emergency declaration's practical significance, noting that the president's authority remains limited by numerous federal statutes, regardless of the executive order.

"I think primarily it looks good, it makes people feel like you've done something and you're taking things seriously," Farber said. "Maybe you can get a little bit of leverage with it. But it's one of those things that looks like a bigger deal than it is."