Trump’s Manufactured National Energy Emergency: the Legal Basis and Cause for Alarm
Kevin Tahara
Since taking office in 2025, President Trump has issued a total of sixty-eight executive orders as of late February on a wide range of topics, such as immigration, healthcare, and foreign affairs.[1] One of these recent orders titled “Declaring A National Energy Emergency” was released on January 20, 2025, and it embodies the administration’s emphasis on domestic energy production.[2] The executive order is predicated upon the National Emergencies Act of 1976,[3] which grants the President the power to declare a national emergency.[4] Once the President declares a national emergency, it unlocks one hundred thirty-seven statutory provisions that may grant the President additional power over public health, national defense, federal employees, asset seizure, criminal prosecution, and international relations.[5] Yet Congress also intended this Act to provide a check on the Executive Branch’s power by giving Congress the ability to terminate the national emergency declaration.[6] However, the Supreme Court decision in Ins v Chadha,[7] which effectively raised the requirements to nullify the President’s decision, combined with the hyper partisan nature of Congress, make it unlikely for an emergency designation to be reversed.[8] The first time Congress ever challenged a national emergency declaration was when President Trump declared an emergency at the southern border during his first term.[9] While Congress passed a joint resolution to end the emergency declaration, President Trump vetoed the action, and Congress was unable to find a super majority necessary to overcome the veto.[10]
While this Act gives the President an opportunity to unlock a wide range of additional powers, it has traditionally been reserved almost exclusively for situations that could be addressed with economic sanctions authority.[11] Instances that did not involve sanctions were related natural disasters, disease, or foreign attacks.[12] However, President Trump’s declaration is unique because it does not call for sanctions and does not fit into the previous non-economic categories.[13] The President stated that the emergency declaration was necessary because the nation’s “energy identification, leasing, development, production, transportation, refining, and generation capacity” are insufficient and place the country at a security risk due to high energy costs, an unstable energy grid, and the influence of hostile foreign countries.[14] At its most basic level, the President’s plans are best summarized by his own statement in the announcement of the order that “We will drill, baby, drill.”[15] The order is intended to boost domestic energy production to the exclusion of renewable sources such as wind and solar, instead favoring increased production fossil fuels such as oil and natural gas.[16] More specifically, the order includes directions for the Environmental Protection Agency and the Army Corps of Engineers to expedite environmental permitting under the Clean Water Act,[17] the Rivers and Harbors Act,[18] and the Marine Research and Sanctuaries Act[19] for energy related projects.[20] Additionally, the order states that all federal agencies are directed to use the Act’s powers to expedite Endangered Species Act consultation requirements.[21]
By declaring a national emergency, the Executive Branch unlocked emergency provisions in the Defense Production Act (DPA).[22] The DPA was created during the Korean War in 1950 to ensure national defense had the resources necessary to function in times of need, and was amended to include energy security after the oil crisis of the 1970s.[23] The Act allows the President to require businesses and corporations to prioritize and accept contracts with the government[24] related to “materials, equipment, and service in order to maximize domestic energy supplies. . . .”[25] Under President Biden, the DPA was used to fund the expansion of the domestic production of minerals like nickel and cobalt that are essential to manufacturing energy storage systems like batteries.[26] The DPA was also used to fund production facilities for clean energy technologies.[27] Under President Trump though, the DPA will likely instead be used to increase fossil fuel production.
However, environmental groups, such as the Natural Resource Defense Council, have questioned whether there is an actual energy emergency that would require the expansion of oil and gas production.[28] Fossil fuel production reached an all-time high during President Biden’s Administration and energy grids are in better condition than what President Trump asserts.[29] Additionally, the United States is already the world’s largest exporter in oil and natural gas and contains enough renewable energy potential to far exceed the nation’s needs.[30]
However, it is unlikely that the Act will be challenged directly. A Senate vote to overturn the Act did not pass.[31] Additionally, environmental groups say that it would be difficult to confront the order directly in court; the statute does not define what is considered an emergency, and “‘courts consistently defer to national security claims.’”[32] Rather, environmental advocacy groups plan to wait and see what future actions the Trump Administration proposes using this order and will bring legal challenges as necessary for each specific action.[33] For example, environmental groups have already filed their first round of lawsuits earlier this month against the Trump Administration in response to environmental protection rollbacks to promote offshore drilling.[34]
While this declaration may not immediately lead to drastic environmental degradation, it lays the groundwork for future fossil fuel infrastructure in sensitive areas with a reduction in environmental regulatory oversight. The U.S. Army Corps of Engineers has already received hundreds of permit applications for fast-track approval for energy infrastructure projects that will likely negatively impact wetlands and waterways.[35] [36] Additionally, environmental watchdogs have raised the alarm that these fast-track approval applications include non-energy related projects, such as a gold mine and a housing subdivision, that may be rubber stamped under the Act’s directives.[36] Optimistically these applications will still receive a comprehensive scientific review, but the Administration’s pressure on agencies to approve these fast-track applications will likely lead to higher than normal approval rates. For the foreseeable future, the Trump Administration’s favorable treatment of energy production reliant on fossil fuel will continue to spur development with long-term environmental impacts that will likely persist beyond the current Administration’s tenure.
[1] Executive Orders, Federal Register, https://www.federalregister.gov/presidential-documents/executive-orders (last visited Feb. 20, 2025).
[2] The White House, Declaring A National Energy Emergency, Presidential Actions, https://www.whitehouse.gov/presidential-actions/2025/01/declaring-a-national-energy-emergency/ (last visited Feb. 20, 2025).
[3] 50 U.S.C. §§ 1601-1651.
[4] Sierra Club v. Trump, 977 F.3d 853, 864-65 (9th Cir. 2020).
[5] A Guide to Emergency Powers and Their Use, Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use (last visited Mar. 29, 2025).
[6] Sierra Club, 977 F.3d at 865.
[7] Ins v. Chadha, 462 U.S. 919 (1983).
[8] Rachel Riegelhaupt, Note: Manufactured Emergencies: The Crisis At The Core Of The National Emergencies Act , 23 N.Y.U. J. Legis. & Pub. Pol’y 277, 290 (2020/2021).
[9] Sierra Club, 977 F.3d at 864-65.
[10] Id. at 862.
[11] Riegelhaupt, supra note 8, at 290
[12] Id.
[13] The White House, supra note 2.
[14] Id.
[15] Transcript: The Inaugural Address of President Donald J. Trump, U.S. Embassy & Consulates in Australia, https://au.usembassy.gov/the-inaugural-address/ (last visited Feb. 20, 2025).
[16] Scott Waldman & E&E News, Trump Declares Energy ‘Emergency’ to Justify More Oil and Gas Drilling, Scientific American, https://www.scientificamerican.com/article/trump-declares-energy-emergency-to-push-excess-fossil-fuel-production/ (last visited Feb. 21, 2025).
[17] 33 U.S.C. §§ 1251-1387.
[18] 33 U.S.C. §§ 401, 403.
[19] 33 U.S.C. §§ 1401–1445; 16 U.S.C. §§ 1431-1447f; 33 U.S.C. §§ 2801–2805.
[20] White House supra note 2.
[21] Id.
[22] 50 U.S.C. §§ 4501-4568; Olivia Guarna and Michael Burger, Demystifying President Trump’s “National Energy Emergency” and the Scope off the Emergency Authority, Climate Law A Sabin Center blog, https://blogs.law.columbia.edu/climatechange/2025/02/14/demystifying-president-trumps-national-energy-emergency-and-the-scope-of-emergency-authority/ (last visited Feb. 21, 2025).
[23] David M. Hart, The Defense Production Act: National Security as a Potential Driver of Domestic Manufacturing Investment 2 (Feb. 2024), https://bipartisanpolicy.org/download/?file=/wp-content/uploads/2024/02/The-Defense-Production-Act-National-Security-as-a-Potential-Driver-of-Domestic-Manufacturing-Investment.pdf.
[24] Alexandra G. Neenan & Luke A. Nicastro, The Defense Production Act of 1950: History, Authorities, and Considerations for Congress, Congressional Research Service (Oct. 6, 2023), https://www.congress.gov/crs-product/R43767.
[25] 50 U.S.C § 4511(c).
[26] Hart, supra note 23.
[27] Id.
[28] E.g. NRDC, No, We’re Not in an Emergency Energy Crisis, https://www.nrdc.org/stories/no-were-not-emergency-energy-crisis (last visited Feb. 21, 2025).
[29] Olivia Guarna and Michael Burger, Demystifying President Trump’s “National Energy Emergency” and the Scope off the Emergency Authority, Climate Law A Sabin Center blog, https://blogs.law.columbia.edu/climatechange/2025/02/14/demystifying-president-trumps-national-energy-emergency-and-the-scope-of-emergency-authority/ (last visited Feb. 21, 2025).
[30] NRDC supra note 28; Scott Waldman and E&E News, Trump Declares Energy ‘Emergency’ to Justify More Oil and Gas Drilling, Scientific American, https://www.scientificamerican.com/article/trump-declares-energy-emergency-to-push-excess-fossil-fuel-production/ (last visited Feb. 21, 2025).
[31] National Energy Emergency Declaration May Accelerate Traditional Energy Infrastructure Projects, GreenbergTraurig, https://www.gtlaw.com/en/insights/2025/3/national-energy-emergency-declaration-may-accelerate-traditional-energy-infrastructure-projects (last visited Mar. 30, 2025).
[32] See Jack Queen, Trump US Energy Emergency Order Should Withstand Court Challenges, Reuters (Jan. 22, 2025), https://www.reuters.com/business/energy/trump-us-energy-emergency-order-should-withstand-court-challenges-2025-01-22/.
[33] Id.
[34] Northern Alaska Environmental Center v. Donald J. Trump, 3:25-cv-00038 (D. Alaska, filed Feb. 19, 2025).
[35] Trump Orders Hundreds of “Energy Emergency” Permit Reviews for Projects that Could Damage Wetlands and Waterways, Environmental Integrity Project, (Feb. 19, 2025), https://environmentalintegrity.org/news/trump-orders-hundreds-of-energy-emergency-permit-reviews-for-projects-that-could-damage-wetlands-and-waterways/.
[36] Id.