In the first 100 days of his second term, President Donald Trump has issued more executive orders in the first 100 days — 35 of them focusing on energy, environmental and infrastructure efforts and law firms — than any other president in history, creating a flurry of governmental actions, broad economic implications and legal challenges, according to a panel of legal experts hosted by The Texas Lawbook.
Trump’s 140 executive orders surpassed the previous record of 99 set in 1933 by President Franklin D. Roosevelt to address the Great Depression.
“That’s at least a major executive action every two to three days,” said Scott Segal, the Policy Resolution Group co-chair at Bracewell.
While Trump’s use of executive orders has been unprecedented in volume, it has also sparked significant political debate and legal scrutiny, underscoring the ongoing tension between executive authority and the checks and balances inherent in the U.S. political system.
More than 40 lawsuits have been filed in federal courts challenging the Trump administration orders. A dozen of the actions have partially stayed or enjoined these executive orders, and this has been especially true for those affecting energy, vehicle emissions and offshore leasing, Segal said.
Lawsuits have challenged the executive orders, citing the federal Administrative Procedure Act, which limits the ability to unilaterally impose or revoke regulations without adhering to notice-and-comment procedures.
Trump and his administration have cited “an infrequently used provision” of the APA to claim that notice and comment rulemaking is unnecessary when declaring an emergency, Segal said.
“Out of an abundance of desire to make change and to make change quickly,” Segal said, “he’s already lost more lawsuits, been enjoined more times, had more temporary restraining orders imposed on the government than we’ve seen in history.”
To avoid further delays, the Trump administration has also sought to make the orders “durable,” avoiding changes to underlying statutes that would necessitate Congressional action.
“It takes as many folks and almost as much money to deregulate as it does to regulate, and that goes to the question of durability,” Segal said. “How durable are these changes if we don’t do them the right way? I do think there are lots of folks in the administration who want to do it the right way, but they may not be on the same time schedule as the president.”
Segal said Trump has used the “bully pulpit” of the presidency and executive branch authority to prioritize deregulation of the energy sector, emphasizing fossil fuels and providing some support for nuclear, geothermal and hydroelectric power.
The panel referenced various executive orders in the first 100 days, including the order for immediate withdrawal from the Paris Agreement and other international climate commitments.
Other executive orders signed include:
- Unleashing American Energy aimed at expediting energy production by streamlining permitting processes and reducing regulatory burdens on fossil fuel industries;
- Declaring a National Energy Emergency, which suspended certain environmental reviews to accelerate energy infrastructure projects; and
- Issuing an order dubbed “Reinvigorating America’s Beautiful Clean Coal Industry” that amended prior regulations to promote coal production and reduce emissions standards.
Several orders that relied on presidential emergency authority invoked section 202 of the Federal Power Act, designed to keep coal- and gas-fired power plants operational under national security justifications.
According to panelist Bryan Clark, an energy partner at Bracewell and former in-house lawyer at Pioneer Natural Resources, orders under the Federal Power Act are typically temporary, requiring renewal every 90 days, and are usually activated during wartime or true national emergencies. The temporary nature of the orders raises legal concerns about the long-term enforceability of the acts.
In Texas, Clark said the uncertainty surrounding federal directives has become an issue in ongoing debates about electricity reliability and the future role of renewable energy.
“So, the uncertainty you see at the federal level is also making its way down into the Texas market,” Clark said.
Clark said the uncertainty comes while there’s an “exponential increase in demand for electricity.”
“And that’s coming from the oil and gas industry wanting to electrify its operations, both to have access to cheaper electricity, as well as reliability and run times,” Clark said. “At the same time, you’re having a number of data centers located in Texas, and you’re creating a situation where a connection to the grid can take anywhere from 18 to 36 months.”
Texas, where most of the state’s electric grid operates independently from the national grid, has already encountered efforts in the current legislative session to restrict renewable energy in favor of fossil fuels following the devastating Winter Storm Uri of 2021.
Renewables, however, provide 30 percent of the electricity generated for the Electric Reliability Council of Texas market.
“At the same time, you’re having the Legislature look at restricting renewable growth, and there are studies out showing that if you restrict renewable growth, you’re going to increase costs for consumers and decrease reliability,” Clark said. “So, there’s a lot of give and pull going on in the Texas energy market with regards to electricity right now, and that’s had a chilling effect in that renewable projects are essentially on hold, or in some instances, being canceled because of this uncertainty.”
Further adding to market volatility, Trump issued an order requiring federal agencies to conduct sunset reviews of their regulations. Clark stated this mandate closely mirrors the state of Texas’s sunset review process, which could potentially burden agencies like the Federal Energy Regulatory Commission at a time of already reduced staffing.
Despite the legal challenges, several panel members noted that other issues must also be considered regarding the ability to implement executive orders.
Joe Brazauskas, senior counsel at Bracewell, noted that the pace of political appointments and confirmations has been “pretty fast,” with major heads of the Environmental Protection Agency, Department of Energy and Department of the Interior, for instance, already installed.
“I think this administration had a pretty good playbook for getting things started. … And I think that’s why we’ve seen so many executive orders come out so quickly,” Brazauskas said.
However, he stated that cuts to the workforce and budget could impact the government’s ability to process and implement various executive orders, potentially exposing further legal vulnerabilities.
The Department of Government Efficiency, or DOGE, has made drastic federal workforce cuts, with more than 200,000 jobs eliminated or reassigned across multiple agencies, bringing federal employment back to 1960s levels.
“They [DOGE officials] don’t think about the legal risk, the litigation risk, they’re just thinking about expediency and reductions,” said Brazauskas, a former senior counsel at the EPA. “And I think sometimes the impacts and the implications of those on the President’s policies are something that we obviously need to talk about.”
Brazauskas said, for example, that the EPA faces 31 different regulations to possibly rescind, replace or revise. He stated that for the EPA to follow the APA notice and comment process for each of those regulations would require “a massive amount of time” and “a robust career workforce” to handle the “hundreds of thousands of comments, theoretically, that need to be reviewed.”
Other staffing losses, such as those in the DOE’s Loan Program Office, could also affect executive orders.
“If you’re thinking about the grant management program where there are still funds available for … some energy technologies that this administration supports,” Brazauskas said. “The speed with which they’re able to get that money out the door or turn these regulations around, I think, will be impacted in some way.”
By attempting to do as much or more with less, DOGE has pushed “political appointees to take a shorter and more efficient and expedient regulatory route,” he said. This, of course, could open the door to legal challenges.
Another area drawing significant attention is the administration’s tariff policy.
Hugo Teste, general counsel at Vopak, emphasized that uncertainty primarily arising from tariff adjustments hinders infrastructure development in Texas and elsewhere.
“We’ve seen upwards of 16 major energy transition projects downsized or canceled,” Teste said.
Trump’s reliance on emergency authority has enabled him to impose broad tariffs without legislative approval, raising concerns in the energy sector.
The Trump administration issued emergency declarations under the International Emergency Economic Powers Act. The imposed tariffs specifically targeted imports from China, Canada and Mexico, claiming to combat fentanyl trafficking and illegal immigration.
Josh Zive, senior counsel at Bracewell specializing in trade policy, noted that the courts have refrained from intervening in foreign policy issues such as emergency-based tariffs. Consequently, he stated that Trump has “very sweeping authority” to extend the tariffs without the same court constraints that apply to executive orders.
“So, you tell me when we know we’ve solved either the fentanyl or the illegal immigration crisis?” Zive said. “The truth is there’s not that kind of an objective marker that would ever limit the president.”
Zive added: “What that also means is in the energy sector, it’s produced really whole new waves of uncertainty at the intersection of energy and trade policy.”
Despite having broad authority to enact tariffs, Zive mentioned that stalled projects and supply chain issues might prompt the Trump administration to reevaluate its tariffs.
“If we start to see announcements of delayed or canceled infrastructure projects in the next few weeks that will apply a level of pressure, I don’t think this administration has seen yet in this discussion,” he said.
Trump energy initiatives may benefit from the National Energy Dominance Council, which appears to be active.
“Some entity was needed to have the whistle and the clipboard to determine if these executive orders were being implemented,” Segal said. “And I think that the NADC has done a nice job with a relatively small number of appointees in that organization of contacting other executive agencies and reminding them of what their obligations are under these broad statements of energy policy.”
Andy Wright, chief administrative officer at Talen Energy, noted that the executive actions have brought about changes that will force businesses to adapt.
“I think there’s continued uncertainty and unpredictability here, and that, of course, as we talked about a few months ago, predictability is one thing that the business community likes,” Wright said.
“I think it’s fair to say that whether it was Trump or Harris or anybody else, the world is unpredictable,” Wright said. “And we have to make decisions in an uncertain world. So, that part of the business really hasn’t changed, and I think in order to succeed — and what we sort of told our folks here internally — is that adaptability is the key.”
In wrapping up the Lawbook panel, Segal said that the uncertainty surrounding Trump’s executive orders is “good news” for general and deputy general counsels.
“I think you’re more important now as officers or advisors to officers of your companies than you have ever been, because not only are you talking about risking and de-risking your own projects,” Segal said. “I’m afraid you’re all acting as counsels to the federal government to determine what kind of change is going to last and what kind of change is not going to last, and how to figure that into the risk calculus for your company.”
Publisher’s Note: Click here to view the recording of the webcast.