Category: Carbon Emissions

Climate Change Environmental Groups Challenge President’s Executive Orders to Expand Energy Development

Margaret Anne Hill, Frank L. Tamulonis III, Stephen C. Zumbrun, and Melissa A. Scacchitti ●

We previously reported that President Trump issued a series of executive actions to fulfill his pledge to advance the United States’ domestic energy economy. These executive actions, such as President Trump’s Executive Orders Unleashing American Energy, Declaring a National Energy Emergency, and Reinvigorating…[the] Coal Industry…., now face legal challenges from environmental groups, led by Our Children’s Trust, a nonprofit law firm that exclusively represents youth plaintiffs against state and federal governments.[1] Presently, Our Children’s Trust seeks to enjoin these orders from taking effect because of their potential impact on climate change in the youths’ future. This post will provide a brief overview of the litigation and its pending timeline.

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Supreme Court Scales Back the NEPA Roadblock to Infrastructure Projects

Margaret Anne Hill and Stephen C. Zumbrun ●

Overview

On May 29, 2025, the U.S. Supreme Court issued a significant decision clarifying the scope of environmental review required under the National Environmental Policy Act (“NEPA”) for major infrastructure projects. The Court recognized and reined in what infrastructure practitioners have long understood: NEPA strayed far beyond its “procedural” and “informational” roots to become an obstruction to infrastructure projects across the country.

As brief background, a project developer filed an application with the Surface Transportation Board (“STB”) for a proposed 88-mile railroad line in Utah. The STB, pursuant to its NEPA requirements, issued a 3,600-page environmental impact statement (“EIS”) analyzing the environmental effects of the project and ultimately approved the railroad line. Groups challenged the STB’s approval, and the D.C. Circuit vacated the STB’s decision, ordering the STB to analyze the potential “upstream” impacts of the proposed railroad, which included possible increased oil and gas drilling activities in Utah, and potential “downstream” impacts of the railroad, such as increased oil refining in Texas.

The Supreme Court reversed the D.C. Circuit Court’s prior decision, finding that the D.C. Circuit: (1) did not afford substantial deference to the STB required in NEPA cases, and (2) incorrectly ordered the STB to review the environmental effects of projects separate in time and place from the actual 88-mile railroad under consideration.

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Unleashing American Energy: Trump Administration’s Latest Executive Orders

Margaret Anne Hill, Frank L. Tamulonis III, Melissa A. Scacchitti, and Stephen C. Zumbrun ●

New Executive Orders and Proclamation

On April 8, 2025, President Donald J. Trump issued three significant executive orders (“EOs”) and a fourth proclamation consistent with his pledge to “Unleash American Energy.” These Presidential actions, titled (1) Strengthening the Reliability and Security of the U.S. Electric Grid, (2) Protecting American Energy from State Overreach, (3) Reinvigorating America’s Beautiful Clean Coal Industry, and (4) Regulatory Relief for Certain Stationary Sources to Promote American Energy, seek to promote domestic oil, gas, and coal energy production. Each of these actions is discussed below.

Strengthening the Reliability and Security of the U.S. Electric Grid, EO 14262

This EO directs the Secretary of Energy to streamline emergency processes and to develop a uniform methodology for analyzing reserve margins across all regions of the bulk power system. The stated needs for the EO include aging infrastructure, increased need for electricity, and demand for energy use by datacenters.

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New SEC Climate-Related Disclosure Rule

Margaret Anne Hill and Holli B. Packer ●

On March 6, 2024, the Securities and Exchange Commission (“SEC”) adopted amendments to the disclosure rules under the Securities Act of 1933 and the Securities Exchange Act of 1934. Although the final rule is a scaled-back version of the proposal published on March 21, 2022, the new rule will require many publicly traded companies to disclose both their direct and indirect emissions, also known as “Scope 1” and “Scope 2” emissions, provided the emissions are material. Companies must also disclose to investors their climate-related risks, including information about financial harm caused by severe weather events and other natural events. The new rule will be phased in beginning with the filing of annual reports for the year ending December 31, 2025.

Of significance to the business community is the SEC’s decision to exclude the requirement to report Scope 3 emissions which would have required businesses to disclose all indirect greenhouse gas (“GHG”) emissions not otherwise included in a registrant’s Scope 2 emissions that occur in the upstream and downstream activities of the registrant’s value chain. In deciding to eliminate the requirement to report Scope 3 emissions, the SEC observed that “Scope 3 emissions typically result from the activities of third parties in a registrant’s value chain and, thus, collecting the appropriate data and calculating these emissions would potentially be more difficult than for Scopes 1 and 2 emissions.”

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Climate Change Litigation—State Tort Cases Move Ahead

Margaret Anne Hill and Stephen C. Zumbrun ●

Climate change-related litigation has been increasing in the United States for the past several years. Not only have the actual number of these types of cases increased, but the claims raised in these cases have been expanding—from state tort claims (nuisance, trespass, and negligence) to federal and state constitutional claims. These cases have been slowly working their way through the legal system, with a major consideration being: Should these cases be in state court, involving state tort claims, or federal court, involving federal statutes or federal common law, because of the major national policy implication of climate change that these cases have the potential to affect?

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The Hydrogen Color Wheel: A Primer

Frederick M. Lowther ●

The international dialogue about climate change and the “net zero” world now includes a focus on hydrogen as an abundant source of energy useful in myriad ways (refining, fertilizer production, motive power, etc.) with potentially zero climate-harmful emissions. For those of us who took Chemistry 101 in high school, we know that hydrogen is by far the most abundant element in the Universe, representing an estimated 70 to 75 percent of all known matter. While that is an awesome number (giving rise to the common student question “How do we know that?”), the fact is that, here on Earth, hydrogen does not exist as a “free” gas—it is present here only in combination with other elements, notably oxygen, carbon, and nitrogen. Thus, to capture hydrogen for use in multiple applications, it must be separated from the paired substances (most commonly water (H2O) and natural gas (CH4)).

In the discourse around capturing hydrogen as a free gas, a color-coding terminology has emerged that rivals a paint store. I call it the “hydrogen color wheel” and it is the source of much confusion. While each of the color “codes” involves a somewhat detailed explanation, my goal in this post is to keep the detail short and within understandable limits.

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The Beginning of the End of the Internal Combustion Engine? California to Phase Out Gas-Powered Vehicles by 2035

Robert C. Levicoff ●

Robert C. Levicoff headshot image

A leader in stringent auto emission regulations, the State of California recently took additional steps in its effort to further protect the environment. On August 25, 2022, the California Air Resources Board (“CARB”) voted to require all new cars and light trucks sold in the state to be “zero-emission” by 2035.[1] The plan, officially known as the CARB Advanced Clean Cars II rule, was originally introduced via executive order by Gov. Gavin Newsom nearly two years ago.[2]

The plan mandates that “[i]t shall be a goal of the State that 100 percent of in-state sales of new passenger cars and trucks will be zero-emission by 2035. It shall be a further goal of the State that 100 percent of medium- and heavy-duty vehicles in the State be zero-emission by 2045 for all operations where feasible and by 2035 for drayage trucks. It shall be further a goal of the State to transition to 100 percent zero-emission off-road vehicles and equipment by 2035 where feasible.”[3]

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Supreme Court Limits EPA’s Authority under the Clean Air Act

Margaret Anne Hill, Frank L. Tamulonis III, and Stephen C. Zumbrun ●


After seven years, three presidential administrations, and two appearances before the Supreme Court, the Obama Administration’s “Clean Power Plan” (“CPP”)—a Clean Air Act regulation designed to limit carbon emissions from existing coal-fired power plants (and later revised by the Trump-era “Affordable Clean Energy” (“ACE”) rule)—was struck down by the Supreme Court on June 30, 2022. See West Virginia et al. v. Environmental Protection Agency et al., No. 20-1530.

Relying on Section 111(d) of the Clean Air Act (“CAA”), the Environmental Protection Agency’s (“EPA’s”) CPP set a carbon emission limit that was essentially unattainable for existing coal-fired power plants. Consequently, EPA determined that the “best system of emission reduction” for carbon from these plants was to cause a “generation shift” from higher carbon emitting coal-fired sources to lower-emitting sources, such as natural gas plants or wind or solar energy facilities. Compliance with the CPP would have required a plant operator to: (1) reduce the amount of electricity the plant generated to reduce the plant’s carbon emissions; (2) build a new natural gas plant, wind farm, or solar installation, or invest in someone else’s existing facility and increase generation there; or (3) purchase emission allowances as part of a cap-and-trade regime. See West Virginia at 8.

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DOE Kicks Off Supplemental Environmental Review of the Alaska LNG

Mark R. Haskell, Brett A. Snyder, and Lamiya N. Rahman

On July 2, 2021, the Department of Energy’s Office of Fossil Energy (“DOE/FE”) issued a Notice of Intent (“Notice”) to Prepare a Supplemental Environmental Impact Statement (“SEIS”) for the Alaska LNG Project (“Project”). DOE/FE will evaluate potential environmental impacts of upstream natural gas production on the North Slope of Alaska, and will conduct a life cycle analysis to calculate greenhouse gas (“GHG”) emissions for liquefied natural gas (“LNG”) exported from the Project.

The $38.7 billion Project includes a proposed gas treatment plant on the North Slope of Alaska, 800-mile pipeline, and a liquefaction facility with a planned liquefaction capacity of 20 million metric tons per year. The Federal Energy Regulatory Commission (“FERC”) has issued an order approving the construction and operation of the Project. On August 20, 2020, DOE/FE authorized Alaska LNG Project LLC’s (“Alaska LNG”) request to export LNG to any country with which the United States has not entered into a free trade agreement (“FTA”) requiring national treatment for trade in natural gas (“Non-FTA countries”) in a volume equal to the Project’s planned liquefaction capacity (equivalent to roughly 929 Bcf per year or 2.55 Bcf per day).

To read the full client alert, please visit our website. 

December 1, 2020: Live CLE Webinar “The Energy Industry after the Election: What to Expect in 2021 and Beyond”

The energy industry has been at the forefront of the 2020 election, and energy development is an issue that polarizes Americans and our businesses and political leaders in choosing the path for the future. Energy developments are inextricably linked to our economy and national security, and the decisions and policies that will be implemented over the next four years are critical to the nation and our participation and role in world affairs. 

Please join us for the webinar, The Energy Industry after the Election: What to Expect in 2021 and Beyond, on Tuesday, December 1, 2020, from 12:00 p.m. to 1:30 p.m. EST, where thought leaders from Blank Rome LLP and Blank Rome Government Relations LLC will provide their perspectives and insights on the following post-election topics:

  • The energy agenda of 117th Congress
    • Tax incentives
    • Hydraulic fracturing
    • Renewables
    • Climate change
  • The energy priorities of the next presidential administration
    • Energy policy
    • Regulatory developments impacting energy development and growth
    • Impacts of climate litigation and the ESG movement
  • Transactions and energy development: Impact of the election on the markets
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