Trump, Energy Policy, and Hard Look Review
Proceedings of the 64th Annual Rocky Mountain Mineral Law Institute (2018), Rocky Mountain Mineral Law Foundation (2018)
39 Pages Posted: 17 Sep 2019 Last revised: 6 Nov 2019
Date Written: 2018
For those concerned about climate change, the Trump administration’s energy policy is alarming. It aims to unravel every corner of the Obama administration’s climate legacy, consistent with an overall sweep of deregulation. Substantively, the Trump policy also departs starkly from the approach of the last decade, embracing traditional energy sources—fossil fuels and nuclear power—above all else. The Trump administration’s moves on energy beg the question: What limits, if any, does this policy approach face? This chapter begins to answer that question. Employing the lens of arbitrary and capricious, or “hard look,” review from administrative law, the chapter outlines principles that may constrain the Trump administration going forward—as well as areas where the administration has room to move.
Our contributions are threefold. First, we detail the pentagonal principles that define the Trump energy policy (yes, there is a policy). Second, we establish that this policy is highly political in nature, in that it both predates Trump’s time in office and is connected to very specific projects and rules (even if that focus is short- rather than long-term). Third, we summarize the administration’s efforts to date and then explain the ways in which hard look review is likely (or unlikely) to throw up barriers to those actions.
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