The Upstream Oil and Gas Industry Under the Trump Administration: A Year of Executive Actions Authors: Kathleen L. Doody Slattery, Marino & Roberts New Orleans, LA. Wayne D’Angelo Ana Ramirez (paralegal) Kelley Drye & Warren, LLP Washington, DC. § 1.01 Introduction Each year in the first term of a new United States Presidential Administration (the “Administration”) is significant in some way, but the first year of an Administration is particularly interesting because it provides the first insight into the new Administration’s priorities and the means by which the Administration will attempt to advance those priorities. Indeed, while presidential campaigns in the United States are often filled with promised priorities and plans of action, it is the actions taken by the President and his Administration after taking office that begin to pare away the rhetoric and reveal what initiatives may actually materialize. For the energy industry, which is regulated or impacted by rules and other actions across multiple federal agencies, an Administration’s overall approach can be difficult to divine. The broad contours of the Trump Administration’s approach, however, have been quite conspicuous from the start. This Administration is focused on (i) across-the-board deregulation of the federal government; (ii) shifting regulatory power to States, (iii) expediting high priority energy and infrastructure projects that will create jobs and increase national security, (iv) promoting development of domestic energy resources to achieve energy independence and dominance, which includes increased access to federal land, and (v) an enforcement approach that is increasingly centered around compliance assistance. § 1.02 Executive Actions in the First Year of the Trump Administration [1] Introduction The first year of an Administration provides a rough agenda and a broad framework for accomplishing its regulatory agenda. Because of the longer lead times necessitated by notice and comment rulemaking under the Administrative Procedure Act (“APA”), most of an Administration’s material actions come from executive orders, agency guidance and directives, personnel decisions, and court filings. It is not uncommon for an incoming Administration to utilize these types of actions to further their substantive policies and goals. For example, incoming Administrations frequently issue Executive Orders to temporarily freeze still-pending agency rules issued by their predecessors. This action gives the new Administration an opportunity to review such regulations to ensure consistency with overall policy priorities, and is not necessarily a harbinger of massive deregulation. Perhaps the most conspicuous aspects of many of the executive actions discussed below are the ease with which they are wielded and the near immediacy of their impact. President Trump’s capacity and willingness to quickly and unilaterally effect major policy and regulatory changes has been questioned by some and cheered by others – and not with much consistency. Indeed, President Trump’s executive actions were so numerous and effective because President Obama’s executive actions were similarly numerous and effective. Executive orders and memoranda do not require congressional approval, do not require observance of often protracted rulemaking proceedings, and are not easily challenged in court. That is not to say, however, that executive orders are immune from the vagaries of politics. In fact, elections are the Achilles heels of executive actions. Unlike statutes that require congressional approval or regulations that require rulemaking processes, executive actions come into effect and are removed with the stroke a single person’s pen. As discussed below, these executive actions include, not only orders and memoranda, but also appointments. [2] Key Appointment/Key Agencies The turnover of an Administration is a huge undertaking, especially when it comes to staffing the more than 4,000 positions, many of which require Senate confirmation. A newly elected President cannot come into office with all of his or her nominees selected. Overall, President Trump’s Cabinet-level appointments have generally been on pace with previous Administrations, but he has been much slower nominating and securing appointments for important undersecretary and staff positions. Compared to prior Administrations, President Trump’s Cabinet is largely made up of individuals with more business experience as opposed to governmental experience. Lacking government and military experience, it was generally believed that President Trump’s Cabinet appointments would reflect how he intended to govern. While this belief may be arguably unfounded with respect to this Administration’s ability to advance certain of its key policies and goals, with respect to energy and environmental policies and goals, the Trump Administration has been fairly aligned, supporting fossil fuel development and deregulation of the federal government. Examples of President Trump’s key energy and environmental appointments include the following: [a] Department of Interior – Ryan Zinke Ryan Zinke began his public service career as a U.S. Navy SEAL officer for 23 years. From 2009 to 2011, Secretary Zinke served in the Montana State Senate and subsequently, represented the state of Montana in the U.S. House of Representatives since 2014. Sworn in on March 1, 2017, Secretary Zinke is the 52nd Secretary of the Interior. [i] Bureau of Ocean Energy Management Acting Director: Walter Cruickshank, Ph.D. Dr. Cruickshank has worked in the Department of Interior for over 30 years. Prior to becoming Deputy Director of the Bureau of Ocean Energy Management, he served as the Deputy Director of the Bureau of Ocean Energy Management, Regulation and Enforcement. [ii] Bureau of Land Management Deputy Director, Programs and Policy: Brian Steed Brian Steed joined the Bureau of Land Management in October 2017. Prior to this, he served as Chief of Staff for Representative Chris Stewart of Utah. Steed also taught economics at Utah State University and was once a deputy county attorney in Iron County, Utah. [iii] Bureau of Reclamation Commissioner: Brenda Burman Confirmed on November 16, 2017 by the Senate, Brenda Burman is the 23rd Commissioner for the Bureau of Reclamation. Burman previously served in the Department of the Interior as Reclamation’s Deputy Commissioner for External and Intergovernmental Affairs. Her experience includes working in Congress as legislative counsel for water and energy for Senator Jon Kyl to state agencies. [iv] Bureau of Safety and Environmental Enforcement Director: Scott A. Angelle Scott Angelle joined the Bureau of Safety and Environmental Enforcement on May 24, 2017. In 2013, Angelle was elected as Commissioner of District II, Louisiana Public Service Commission where he served until appointed in 2017 to the bureau. Angelle also served as Secretary of the Louisiana Department of Natural Resources and in 2010 was appointed as Interim Lieutenant Governor of Louisiana. [v] Fish & Wildlife Service Principal Deputy Director: Greg Sheehan On June 17, 2017, Greg Sheehan was appointed as Principal Deputy Director of the U.S. Fish & Wildlife Service. Prior to his appointment, Sheehan served as the director of the Utah Division of Wildlife Resources for the last 5 years of his 25 year tenure. [b] Department of Energy – Rick Perry Rick Perry currently serves as the 14th United States Secretary of Energy. Secretary Perry is a veteran of the United States Air Force and the longest-serving Governor of Texas. Prior to being elected as Lieutenant Governor in 1998, Perry also served two terms as Texas Commissioner of Agriculture and three terms in the Texas House of Representatives. [c] Department of Commerce – Wilber Ross Wilber Ross was sworn in on February 28, 2017 as the 39th Secretary of Commerce. Secretary Ross is the former Chairman and Chief Strategy Officer of WL Ross & Co. LLC and has over 55 years of investment banking and private equity experience. Over the years, Secretary Ross has been deeply involved in finance matters and served as privatization adviser to New York City Mayor Rudy Guilani and was appointed by President Bill Clinton to the board of the U.S.- Russia Investment Fund. [i] National Marine Fisheries Service Assistant Administrator: Chris Oliver Chris Oliver most recently served as Executive Director of the North Pacific Fishery Management Council for 16 years. Additionally, Mr. Oliver served as a fisheries biologist for the council. Prior to his time at the council, he built a foundation of knowledge in the Gulf of Mexico fisheries as a Research Associate at Texas A&M University. [d] Environmental Protection Agency- Scott Pruitt On February 17, 2017, Scott Pruitt was confirmed as the 14th Administrator of the U.S. Environmental Protection Agency. Administrator Pruitt previously served eight years in the Oklahoma State Senate and subsequently was elected as Attorney General for Oklahoma. In addition to his public service, Administrator Pruitt is a former co-owner and managing general partner of an Oklahoma minor league baseball affiliate team. [e] Occupational Safety & Health Administration – Scott Mugno (nominated but not yet confirmed) Nominated in late October 2017, Scott Mugno served as the Managing Director for FedEx Express Corporate Safety, Health and Fire Protection in Memphis, Tennessee. Twice he has received the FedEx Five Star Award, the company’s highest honor. Mr. Mugno’s strong background in developing, promoting and facilitating