New Administration: Key Energy Issues Tied to Executive Orders

These orders and memoranda are only the first chapter of the coming presidential term.  It is clear that additional important developments are forthcoming, and that the future is, as always, uncertain; at least two recent Executive Orders have already been preliminarily enjoined or stayed.  To fully carry out his election mandate, the president will likely require significant legislative support.  The new Administration is keenly focused on the need for legislation to accommodate and implement its energy agenda.  The Executive Orders also require agencies to take additional action, and, as discussed below, push for certain agency actions on a relatively rapid timeline.

Vinson & Elkins is committed to providing timely and expert counsel to help navigate changes brought about during the new administration.  We have already begun to release targeted insights related to the Executive Orders (addressing, for example, impacts on affirmative action and Diversity, Equity and Inclusion) and will provide additional insights in the coming weeks.  This overarching analysis focuses on the following eleven key issues: (1) “unburdening” of infrastructure development; (2) environmental issues, including National Environmental Policy Act (“NEPA”) reviews and the role of the Council on Environmental Quality (“CEQ”); (3) the impact of rescinding prior Executive Orders; (4) Environmental Justice (“EJ”); (5) changes in climate change policy; (6) impacts on pending regulations; (7) changes in Liquified Natural Gas (“LNG”) export facility permitting; (8) impacts on domestic electricity generation; (9) U.S. Department of Energy (“DOE”) energy infrastructure funding; (10) tax credits under the Inflation Reduction Act (“IRA”); and (11) potential antitrust impacts with carryover into the deal space.

Initial thoughts on each of these issues are presented below.

What does this mean for Infrastructure Development?

Section 3 of Unleashing American Energy directs the heads of all agencies to review all existing regulations, orders, guidance documents, policies, settlements, and consent orders and identify actions that impose an “undue burden” on the identification, development, or use of domestic energy resources, with particular attention to fossil fuels, hydropower, biofuels, critical minerals, and nuclear energy resources.  “Undue burden” is not defined.  By February 19, 2025 (within 30 days of the Executive Order), the head of each agency must consult with the director of the Office of Management and Budget (“OMB”) and National Economic Council (“NEC”) to implement plans of action to alleviate these “undue burdens.”

Numerous federal agencies (including the Federal Energy Regulatory Commission (“FERC”); DOE; U.S. Department of the Interior (“DOI”); Army Corps of Engineers; Nuclear Regulatory Council (“NRC”); and the Environmental Protection Agency (“EPA”)) have responsibilities that relate to energy infrastructure permitting.  The “unburdening” directive raises several interesting threshold questions for these agencies.

First—will the independent agencies (such as FERC and the NRC) comply with this directive at all?  In March 2017, President Trump issued an Executive Order (Promoting Energy Independence and Economic Growth) that, somewhat similarly, called for “immediate review of all agency actions that potentially burden the safe, efficient development of domestic energy resources.”  As an independent agency, FERC voluntarily prepared a FERC staff analysis of the issues identified for review in the Executive Order.  We expect that FERC (and perhaps other independent agencies) will follow the same approach this time around.  Indeed, it is not likely that anyone who wants a long-term role in the Trump Administration would buck the directives contained in the Executive Orders.

Second—for agencies that do respond, how will they interpret “undue burden”?  As noted above, the 2017 Executive Order defined “burden,” but the 2025 Executive Order, Unleashing American Energy, does not, leaving the door open for a potentially broader view of regulations that might be on the chopping block.  This may especially be the case because this second time through, President Trump has moved with lightning speed to install political appointees in federal agencies, and these appointees are likely to take an expansive view of the President’s directives.  Moreover, and unlike in 2017, the current mandate to “unburden” comes hand-in-hand with the new Department of Government Efficiency, raising broader questions about whether any forthcoming effort at deregulation will be more comprehensive than past attempts.

Finally, it remains to be seen whether the Executive Order will “unleash” American energy as intended, or whether the links in the chain unaddressed by the Executive Order will become bottlenecks for the entire industry.  For example, Sections 6 and 7 speak directly to permitting requirements and more efficient permitting, but it is unclear where, in instances where other action may be required (e.g., federal land real estate grants which may not be permits, per se, or required state regulatory approvals), the agencies or administration will be able to eliminate or bypass these other “burdens.”  Completely eliminating numerous burdens will likely require legislation.  The precise path towards this sort of unburdening should become clearer as Section 3, addressed above, is implemented.

What does this mean for NEPA, CEQ’s Role, and Climate Change and Environmental Justice Reviews?

Unleashing American Energy directs significant changes to how agencies will conduct reviews under NEPA in a bid to increase efficiency in federal permitting.  Three immediate and near-term actions lay the foundation for substantive rule changes that we expect to take one to two years.  First, the Executive Order revokes a Carter-era Executive Order that the government previously used to claim authority for CEQ to issue binding rules; this effectively cements as executive branch policy the outcome of the recent D.C. Circuit opinion in Marin Audubon Society v. Federal Aviation Administration, which held that CEQ lacked that authority.  Second, CEQ has 30 days to propose rescinding its existing NEPA regulations (though the regulations remain on the books until any such rule is finalized).  Third, CEQ must publish guidance on how agencies should implement NEPA in their reviews—a marked retreat from binding regulations.

Then begins the agency-wide process of making substantive changes to how agencies implement NEPA.  Each agency has its own “implementing” regulations dictating how it complies with NEPA.  Under Unleashing American Energy, CEQ will convene a working group to coordinate the agencies’ individual efforts to ensure consistency.  At present, most agency-level regulations incorporate CEQ’s existing regulations, so until the agencies’ implementing regulations are updated through notice-and-comment procedures, such agencies can be expected to continue to comply with their current NEPA regulations.  It remains to be seen whether CEQ will finalize its rescission of the existing NEPA regulations at the same time as agencies update their implementing rules, in order to reduce or eliminate any inconsistencies in the application of NEPA.

Several new Executive Orders signed by President Trump seek to reverse the Biden Administration’s emphasis on climate change and EJ, especially in the realm of federal permitting.  Unleashing American Energy, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, and Ending Radical and Wasteful Government DEI Programs and Preferencing revoke numerous previous orders, including those that: (1) re-established the Interagency Working Group tasked with developing new Social Cost of Greenhouse Gas (“SC-GHG”) metrics, (2) required federal permitting decisions to consider climate change effects, (3) directed a focus on disproportionate impacts of federal activities on EJ communities (reaching back as far President Clinton’s Executive Order 12898 that introduced this focal point), and (4) directed CEQ to prepare guidance on how agencies should consider EJ in NEPA analyses.

While the Executive Orders just noted should be effective in reversing earlier Executive Orders (see below), it is critical to recognize that NEPA itself remains a valid law and agencies will still be required to conduct NEPA review.  President Trump’s Executive Orders do not eliminate the need to comply with NEPA.  And, despite the Trump Administration’s decreased focus on climate change and EJ, agencies will need to continue to consider them in some fashion in NEPA reviews to reduce the risk that the courts may find a NEPA analysis insufficient.  Project proponents should continue to provide fulsome analyses of project impacts, particularly where parties opposing such projects raise such analyses in comments, filings, or letters in the record.  Project proponents should also include beneficial impacts of energy and infrastructure development that Unleashing American Energy is designed to promote, such as increased grid reliability and the supply of affordable energy to American consumers.

Overall, Unleashing American Energy underscores the importance of permitting reform, and we expect renewed efforts for comprehensive permitting reform by the Administration and Congress.

What will be the impact of Recission of Prior Executive Orders?

Trump’s Executive Order titled “Initial Recissions of Harmful Executive Orders” revokes a number of Biden-era Executive Orders, including Executive Orders relevant to energy and environmental issues.  For instance, Section 2 revokes Executive Order 13990, which declared different national policies (including advancing EJ and reducing greenhouse gas (“GHG”) emissions), ordered the consideration of revocation of executive actions from the first Trump administration, and established a working group to develop social costs of certain emissions, including carbon and methane, to be used in agency analyses of GHG costs.  Section 2 also revokes Executive Order 14008, which established climate change as an essential component of foreign policy and national security, aligned federal procurement and real property management to support climate change action (e.g., developing climate action plans to bolster adaptation and resilience), and sought to “empower[] workers” through sustainable infrastructure, conservation, and other efforts.  Another Executive Order revoked by Section 2 is Executive Order 14027, which created a temporary Climate Change Support Office in the U.S. Department of State to take actions, including supporting bilateral and multilateral engagements, related to global climate change.  Section 2 also revokes Executive Order 14030, which declared that it was national policy “to advance consistent, clear, intelligible, comparable, and accurate disclosure of climate-related financial risk,” required the development of a government-wide strategy on assessing and mitigating such risks to the federal government, and mandated the development of recommendations to integrate these risks into federal financial reporting and management.

Other Executive Orders revoked by Trump include Executive Order 14057, which established a whole-of-government approach to achieving net-zero emissions by 2050.  In addition, this Executive Order ostensibly revoked the Presidential Memorandum of March 13, 2023, which withdrew the Beaufort Sea area off the Alaskan coast from offshore oil and gas leasing, as well as the Presidential Memorandum of January 6, 2025, which withdrew large swaths of the Outer Continental Shelf from offshore oil and gas leasing.  The revocation of Executive Order 12898, aimed at prioritizing addressing disproportionate environmental and health effects on minority and low-income communities, and Executive Order 14096, aimed at strengthening the federal government commitment to EJ, may impact EPA enforcement related to EJ and consideration of EJ in environmental permitting.

Unlike formal regulatory changes, Executive Orders typically act only to direct the internal affairs of the executive branch and thus are less susceptible to court challenges than changes that directly affect private actors’ rights and responsibilities.  Thus, for project proponents, these actions and the changeover in decision makers likely means that these issues will be less prominent considerations in the effort to permit and obtain approvals from the federal government agencies.  The likely bigger issue is that it remains to be seen how courts will react to these changes, and whether the judicial review process will functionally resurrect some of these issues and considerations under the umbrella of some of the broad terms that can be found in many environmental laws.

What does this mean for previous Climate Change Policies?

The Executive Order titled “Putting America First in International Environmental Agreements” withdraws the United States from the Paris Agreement under the United Nations Framework Convention on Climate Change (the “Paris Agreement”) along with “any agreement, pact, accord, or similar commitment made under the United Nations Framework Convention on Climate Change” (“UNFCCC”).  The withdrawal from the Paris Agreement implies that, to the extent the Paris Agreement was driving domestic policy, that support has been removed.  For example, regulations geared toward mitigating the impacts of climate change, such as the EPA’s methane rule for upstream oil and gas production, greenhouse gas standards for power plants, and emissions standards for light, medium, and heavy-duty vehicles, could be re-evaluated now that the Trump Administration has challenged the international premise for climate action.  But even if there is a re-evaluation, a formal rulemaking process would likely be required to make actual changes.  Though not explicit, this Executive Order appears to include various other agreements, such as the Bali Action Plan (2007), the Copenhagen Accord (2009), the Cancun Agreements (2010), the Durban Platform for Enhanced Action (2012), the Baku Agreements (2024), and the implementation of the Green Climate Fund.  This Executive Order sets the stage for the United States to renegotiate the terms and conditions of the UNFCCC in a fashion that is more aligned with the Trump administration’s priorities.

Other Executive Orders signal a government-wide reconsideration of past climate change regulations and policies, especially as they related to the production, transportation, and use of minerals and fossil fuels.  For example, Unleashing American Energy directs the EPA to, within 30 days, provide recommendations to the White House budget office regarding the “legality and continuing applicability” of the EPA’s 2009 GHG “Endangerment Finding.”  The EPA has used the 2009 Endangerment Finding to support the issuance of tighter automotive tailpipe emission limits based on GHG emissions and also to provide the scientific and legal underpinning for many of the EPA’s later climate regulations.  The result of this recommendation process is likely, at minimum, to be a determination that any new rules require their own finding that they address a specific and meaningful contribution to air pollution.  Such a legal position also will equip the Administration with a common basis on which to propose undoing prior rules that lack their own finding, such as the standards for oil and gas operations and the more recent GHG control rules adopted for the power sector.  The actual undoing of those rules, however, will require further judicial and regulatory actions, which will vary depending on the status of ongoing litigation over their validity.  While the road ahead is uncertain, there can be no mistake that the Executive Order signals the Trump Administration’s view that climate change rules and policies that previous administrations adopted need to be modified or eliminated.  The Trump Administration sees this as essential because those rules and policies impede the development of America’s energy resources and harm the economy without providing any measurable benefits regarding global climate change.

President Trump’s Executive Orders also direct EPA to consider eliminating use of the SC-GHG from federal permitting decisions.  As Unleashing American Energy notes, SC-GHG estimates are “marked by logical deficiencies” with a “poor basis in empirical science,” as its outputs are based on policy considerations, can vary widely, and are not generally accepted by the scientific community.  While the first Trump Administration also disbanded the Interagency Working Group and withdrew the then-existing SC-GHG estimates, it also developed its own SC-GHG estimate that reduced the estimate of the benefits related to GHG emissions reductions.  The new Trump Administration may take similar action to revise SC-GHG estimates.

At their most impactful, these various Executive Orders could open the door for reconsideration, replacement, or recission of multiple regulations that implement the Obama and Biden Administrations’ climate change policies.  Examples include the Clean Power Rule, the New Source Performance Standards Subparts OOOOb and OOOOc for the oil and gas sector, GHG emission standards for new and existing power plants, zero emission mandates for motor vehicles, and waivers to states, like California, which desire to implement more aggressive motor vehicle emission controls than allowed by the Clean Air Act.  Agencies are already taking action, as demonstrated by FERC’s January 24, 2025 Order terminating the 2021 proceedings intended to address the impacts of natural gas infrastructure projects on climate change; these proceedings initially sought to address matters including, but not limited to, whether the Natural Gas Act, NEPA, or another federal statute authorized or mandated use of SC-GHG analysis by the Commission.

What does this mean for pending regulations?

President Trump’s Executive Order establishing a regulatory freeze and prepublication clawback is part of what has become standard practice for recent administration turnovers.  This freeze directs agencies to refrain from proposing or issuing rules prior to review by the President or an appointed official, immediately withdraw any rules sent to the Office of the Federal Register but not published, and to consider postponing for 60 days the effective date of any rule published in the Federal Register that has not taken effect.  In the past, courts have generally upheld such freezes and clawbacks without the use of notice-and-comment procedures under the Administrative Procedure Act (“APA”), although the issue has been litigated.  The effective date delay may also be subject to the APA’s notice-and-comment procedures.

What does this mean for Environmental Justice?

EJ considerations were a mandated part of federal permitting—going back as far as the Clinton Administration—and were most recently strengthened during the Biden Administration.  Several of President Trump’s Executive Orders represent a sharp departure from the previous administration’s focus on EJ in permitting and enforcement decisions.  Ending Radical and Wasteful Government DEI Programs and Preferencing directs federal agencies to “terminate, to the maximum extent allowed by law” all EJ offices, positions, programs, and activities within 60 days.  As a practical matter, this Executive Order removes much of the administrative infrastructure and leadership developed to support EJ initiatives at the federal level.  Ending Illegal Discrimination and Restoring Merit-Based Opportunity, Establishing and Implementing the President’s “Department of Government Efficiency” and Initial Recissions of Harmful Executive Orders and Actions revoke Executive Orders 12898 and 14096 to remove the Clinton and Biden Executive Orders underpinning a focus on EJ analyses at the federal level.

Notwithstanding this, whether expressly or under another name, EJ concerns are still likely to be addressed in NEPA documents, if for no other reason than environmental and other groups are likely to continue to challenge permits under the APA based on allegedly insufficient analyses of impacts on disadvantaged communities.  Similarly, following Trump’s Executive Order, we expect a practical and potentially explicit recission of the EPA’s April 2021 Starfield Memo directing stronger environmental enforcement in EJ communities.  Although not expressly the target of the new Executive Orders, it is likely that EPA will discontinue efforts (largely unsuccessful to date) to leverage Title VI of the Civil Rights Act to secure burdensome permitting conditions.  Finally, although prior administrations never succeeded in imposing substantive EJ requirements on state permitting activities without state cooperation, states likely will have a divided approach to EJ going forward.  Some states like New Jersey, New York, and Massachusetts that have recently passed EJ laws and regulations may forge ahead with those efforts.  Others may follow the lead of the federal government.

What do the Executive Orders mean for Traditional and Renewable Electricity Generation?

President Trump issued a Memorandum for the heads of certain federal agencies, titled “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” (the “Memorandum”) that withdrew all areas within the Offshore Continental Shelf (“OCS”) for new and renewed wind energy leasing until the revocation of the Memorandum.  The Memorandum also directs the Secretary of the Interior to “conduct a comprehensive review of the . . . necessity of terminating or amending” any existing wind energy leases in OCS and “identifying any legal bases for such removal.”  The Memorandum also directs federal agencies to pause the issuance of any new or renewed approvals, permits, rights of way, leases or loans for offshore and onshore wind projects, pending completion of a comprehensive assessment and review of federal wind leasing and permitting practices.  Notably, the Memorandum does not create a deadline for the delivery of such assessment.

While the 2025 Executive Orders explicitly support certain elements of the energy transition (hydropower, biofuels, critical mineral, and nuclear energy resources), they do not support solar or wind energy and seem to signal outward antagonism by President Trump’s Administration towards wind energy development.  Declaring a National Energy Emergency notes that an “insufficien[cy]” of energy production, transportation, refining and generation among other things, “constitutes an unusual and extraordinary threat to our Nation’s economy [and] national security.”  As a result, the Executive Order directs the heads of agencies to “identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the . . . generation of domestic energy resources.”  However, Declaring a National Energy Emergency defines “energy” and “energy resource” as “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals” and “generation” as the “use of energy to produce electricity . . . .” Because wind and sunlight is not considered “energy,” wind and solar farms are likely not considered “generation” for purposes of Declaring a National Energy Emergency and are therefore unlikely to receive the permitting relief and support provided therein.

While the intended breath and outcome of Unleashing American Energy and the energy related 2025 Executive Orders will require further review, they appear to be focused on easing historical burdens on generation from traditional fuels (e.g., natural gas, coal, hydropower and nuclear), as Unleashing American Energy directs agency heads to “identify those agency actions that impose an undue burden on the identification, development, or use of domestic energy resources — with particular attention to oil, natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.”  In contrast, on the same day, President Trump issued the Memorandum regarding wind leases, putting the brakes on federal agencies issuing any approvals or permits for offshore or onshore wind projects.  As such, it appears that traditional fuels will likely be preferred, while certain types of renewable projects will presumably need to advocate zealously to maintain anything close to the current permitting environment.

What do the Executive Orders mean for LNG export?

Under Section 8 of Unleashing American Energy, President Trump directs the Secretary of Energy to restart reviews of applications for approvals of LNG exports and consider economic and employment impacts within the United States when assessing the “Public Interest.”  Unleashing Alaska’s Extraordinary Resource Potential also addresses LNG exports, and specifically prioritizes development of the state’s LNG potential (e.g., the Alaska LNG Project).  Reopening export markets will create higher demand for domestic natural gas, with salutary effects on compliance with federal and state policies that prohibit/limit waste of natural gas that cannot make it to market.  This has beneficial national security implications.

President Trump’s initial Executive Orders do not address how the restart will deal with the Biden Administration’s LNG Export Study.  We have recently covered the Study, including next steps and possible revisions under the Trump Administration.

How will the Executive Orders affect DOE Grant Funding?

Section 7 of Unleashing American Energy directs all agencies to immediately pause the “disbursement” of funds “appropriated” through the IRA or the Infrastructure Investment and Jobs Act (Public Law 117-58), including but not limited to funds for electric vehicle charging stations made available through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Discretionary Grant Program.  Agencies are further directed to review their processes, policies, and programs for issuing grants, loans, contracts, or any other financial disbursements of such appropriated funds for consistency with the law and the policy outlined in Section 2 of the Executive Order.  Subsequent guidance from the OMB emphasized that the pause applies only to appropriations that contravene the policies established in Section 2, which promotes policies such as encouraging exploration and production on federal lands and waters and establishing the U.S. as the leading producer of critical minerals.  Section 2 also directs agencies to “eliminate the electric vehicle mandate.”  Agencies are required to submit a report to OMB and the NEC within 90 days detailing the results of their review.

Pursuant to Section 7, DOE is likely to suspend work on all conditional loan guarantees, grant awards that have been announced but not finalized, and all pending loan guarantee and grant applications while it determines which ones are contrary to the administration’s policies.  For finalized grant awards, DOE is likely to give each a hard look, and to the degree contrary to the administration’s policies, suspend or terminate them where permissible under the award terms.  Such DOE awards typically allow DOE to terminate funding at the end of each phase of a grant for reasons including if an award no longer effectuates the program goals or agency priorities.  If a grant award is suspended or terminated, a recipient will likely have recourse for funds expended before the suspension or termination but not for funds expended afterward.  On the other hand, projects that are deemed to advance the administration’s priorities will likely be allowed to move forward following DOE’s review.  We expect that projects related to biofuels, critical minerals, hydropower, and nuclear energy resources will be more likely to proceed given the express support of such resources in Section 3 of Unleashing American Energy.  Finally, we expect DOE will continue to disburse funds where the spending is not discretionary, either pursuant to the terms of the statutes or because DOE has a binding commitment with a counterparty (for example, under a closed loan guarantee).

This story is unfolding in real time.  There continue to be questions around the Administration’s plans related to government funding, including DOE grant funding.  On January 27, 2025, the acting director of OMB issued a memo indicating that a temporary freeze of government funding would take effect at 5 p.m. ET on Tuesday, January 28, 2025.  Then, on the 28^th, OMB issued a separate memo saying that the pause could be as short as a day and any payment required by law will be paid without interruption or delay; later that day, an administrative stay was issued by a U.S. District Judge.  And, on January 29^th, the OMB issued a further directive, stating that its January 27^th memorandum implementing the freeze has been rescinded, although that does not appear to impact the Executive Order’s larger directive for a pause on certain disbursements.  Because even a “pause” on financial transactions has a more direct and immediate impact on those on the receiving end, executive actions in these areas are likely more susceptible to a meaningful court challenge than many Executive Orders.  In that regard, and in addition to the administrative stay referenced above, it is worth noting that a collection of state attorneys general filed suit in federal district court, seeking to challenge this aspect of the Executive Order.  We will continue to assess these developments.

What does this mean for Tax Credits available under the IRA?

Executive Orders do not have the power to rescind, amend, or terminate tax credits or benefits existing under the U.S. federal income tax code, and Unleashing American Energy and subsequent OMB memos make no mention of tax credits, let alone attempt to expressly unwind or terminate any tax benefits currently existing under the IRA or otherwise.  Any changes to those provisions would require an act of both houses of Congress and significant time and effort.  Thus, for there to be a “pause” on the availability of tax credits under the IRA in the short term, the U.S. Department of the Treasury (“Treasury”) would have to refuse to honor credit claims or refunds when tax returns are filed and justify doing so without any statutory basis for doing so.  We do not believe that is a meaningful risk — though we will be watching carefully for any impacts on elective pay (i.e., “direct pay”) claimants.

We are also currently analyzing the impact of the Unleashing American Energy and Regulatory Freeze Pending Review on recently released Treasury regulations and guidance.  While a significant amount of Treasury guidance was released prior to President Trump taking office, it is possible proposed regulations and other temporary guidance can be reviewed and revised.  Of course, this may still take some time and, for any final Treasury regulations, would need to follow the notice-and-comment procedures under the APA.

It is clear that the Administration is focused on energy policy, including tax benefits for EVs and wind.  However, these tax benefits cannot be unwound by an Executive Order or unilateral presidential action.  Furthermore, several Republican members of Congress have been steadfast in their support of the IRA, which may insulate the majority of the IRA’s tax credits from repeal or damaging changes, especially given the Republican Party’s narrow control of both houses (discussed further here).  As a result, while changes around the margins and for particular industries (e.g., EVs) should be expected, it is unlikely that the tax credit available under the IRA as a whole will be significantly altered.  If alterations do occur in the short term, any legislative changes would likely be implemented through the budget reconciliation process through which the IRA was initially passed, rather than via Executive Order.  It would also be unprecedented for any change to the IRA to not include transition rules to provide a runway for projects and investments currently in development. 

What does this mean from an Antitrust perspective?

For antitrust, the Executive Orders and regulatory freeze have not yet had a direct impact.  As of this writing, the new and more burdensome HSR form and filing requirements are still scheduled to go into effect for deals filed on or after February 10, 2025.  The new HSR value thresholds, the lowest of which will increase to $126.4 million, are expected to take effect on February 21, 2025.  Biden Administration changes including the employee non-compete rule and January-released Antitrust Guidelines for Business Activities Affecting Workers remain on the agencies’ websites.  Commissioner Andrew Ferguson has been elevated to Chair of the Federal Trade Commission (“FTC”), replacing former Chair Lina Khan (this action did not require Senate approval), but the nominations of proposed Commissioner Mark Meador (who would replace now-Commissioner Khan) and the proposed head of the U.S. Department of Justice Antitrust Division, Gail Slater, are awaiting Senate approval.  Commissioner Khan has announced that she will resign her seat on the FTC in the coming weeks.  See our antitrust predictions for the Trump Administration for more information.

About Vinson & Elkins

At Vinson & Elkins, we pride ourselves on the breadth of our experience and the depth of our bench.  Our interdisciplinary team of attorneys is analyzing Executive Orders as they continue to roll out, monitoring related court proceedings and other developments, and helping clients plan for the future.  Our team has project development and environmental experience practicing before all major federal agencies.  We are also able to assist with environmental, social and governance matters; antitrust assessments; and we regularly handle large, complex transactional matters for our clients, including some of the largest and most complex deals in the energy space.  Our Energy Regulatory, Environmental, Antitrust, Complex Commercial Litigation, Appellate, Labor & Employment, Tax, and Corporate practice groups have relevant experience and stand ready to advise.  If we can help during the coming days and weeks, please call one of the contacts identified below or your primary Vinson & Elkins contact, and we will get you in touch with the appropriate members of our team.

¹ See Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects.

² See, e.g., Initial Recissions of Harmful Executive Orders and Actions; Ending Radical and Wasteful Government DEI Programs and Preferencing; and Ending Illegal Discrimination and Restoring Merit-Based Opportunity.