Officials under then-President Donald Trump had an idea for how to stop America’s aging coal and nuclear plants from closing: Call the closures a threat to national security.
Under the 2018 plan, the Department of Energy would declare an “emergency” and use existing authority to order utilities to buy two years’ worth of power from coal and nuclear generators most at risk of shutting down.
Marked “Privileged & Confidential,” the memo dated May 29 set up a planned meeting a few days later inside the National Security Council.
The White House confirmed that Trump wanted the policy. But when the memo leaked, it hit like a ton of bricks. Free market Republicans saw the rescue plan for dozens of older, smaller, money-losing coal plants as just the kind of heavy-handed federal intrusion they stood against. Trump’s policy would put White House executive authority behind coal-burners in competition with cheaper power from natural gas and cleaner sources such as solar and wind energy.
The policy met with objections from staff inside the White House and Trump finally abandoned it, sources said at the time.
Six years later, Trump the candidate — vowing to reverse parts of President Joe Biden’s largest-ever federal investment in clean energy — is again reviving the idea of declaring an “energy emergency” and using a second Trump presidency to expand fossil fuel power generation. This time, it’s to keep up with the competition.
“We will build new power plants,” he said during a stop in Savannah, Georgia, this week. “China is already building plants, electric plants, and we have a problem because we have things called environmental impact statements and various things that you have to go through. I will get them approved so fast.”
In various forms under negotiation on Capitol Hill, speedier permits for energy projects already have bipartisan support. But the prospect that Trump would take an approach similar to his plan in 2018 to intervene directly in the workings of the nation’s complex system of electricity markets is raising new questions.
Starting early this summer, the Trump campaign locked onto rising electricity prices as a problem to pin on Biden’s economic policy. He promised to cut energy costs in half inside of a year from taking office. And he’s promising to do so as Silicon Valley’s cloud computing giants and U.S. industrial growth demand more power from the grid.
In New York City this month, Trump applied the national emergency idea to oil and gas production. It is time to “drill, baby, drill” to exploit the “liquid gold” of the nation’s hydrocarbon deposits, Trump declared, as he mocked Democrats’ warnings about the planet-warming carbon emissions from coal, oil and natural gas.
Under Biden, money and policies have tilted markets toward making plans for a more dramatic shift to clean energy. Coal accounts for just about 16 percent of U.S. generation today. Natural gas is now the dominant source of electricity, and solar power and battery storage are growing rapidly.
For oil’s part, the United States is producing record volumes, even as auto companies pump billions of dollars into electric vehicle technology that would make Americans less dependent on the fuel.
‘We will build new power plants’
No U.S. president has said that “we will build new power plants” in the way Trump did since Franklin Roosevelt pushed the Tennessee Valley Authority Act through Congress in 1933 to bring economic development and flood control to blighted counties in southern Appalachia during the Great Depression.
Trump’s campaign staff did not reply to requests for details about the former president’s plans, beginning with whether “we” means Republicans in Washington, the power industry, the American people, or Trump himself.
Coupled with his pledges to open the taps further on U.S. gas and oil production and create new tax subsidies for manufacturers to build on public land (potentially powered with new streams of natural gas), an expansive reading of Trump’s brief statement implies a wartime-level exercise of presidential authority.
Could Trump do it with a win Nov. 5 and the backing of new majorities in the House and Senate that he led to victory?
In theory, he would have to get GOP leaders to suspend the filibuster rule, create new laws to build power plants on public lands and subsidize gas-fired generation, and gut clean air rules and other environmental protections.
The electricity from Trump’s new power plants would most likely require thousands of miles of new high-voltage lines across state lines that now are watchfully guarded by governors.
“It would be the most aggressive building program [on] energy since TVA,” said Mike McKenna, a veteran Washington energy lobbyist who was a deputy assistant to the president for legislative affairs in the Trump White House.
Trump would have to activate an aggressive use of federal eminent domain to override state objections to building new power lines and gas pipelines, rewrite the Federal Power Act and challenge nearly a century of complex regulatory rulings tested by judges all the way up to the U.S. Supreme Court.
“I’m not sure of the details, but it fits right in with his approach to economic development — lower taxes, less regulation, more and less expensive energy,” McKenna said. “Given the data center demand, we are going to need more power plants and pipelines.”
Nearly half of the states, mostly run by Democratic governors, support federal action to dramatically shrink power plant greenhouse gas emissions in the next two decades. Some of the goals are written into statutes. Trump’s vision would surely doom effective federal action against extreme weather catastrophes from a hotter planet, according to scientific consensus.
Today, nearly all of the largest utilities in the Edison Electric Institute have long-term climate action goals.
TVA never lived up to the hopes of Roosevelt and progressives for public power that would create a “yardstick” for fair and competitive electricity prices in response to the power of huge U.S. utility holding companies, historians agree. But it was an enormous act of governmental authority that was furiously opposed by conservative Republicans and the power industry, led by utility executive Wendell Willkie, who became FDR’s 1940 presidential opponent.
The full exercise of presidential power over the electric power, gas, coal and oil sectors did not come into Roosevelt’s control until Japan bombed Pearl Harbor, launching the U.S. into World War II.
Short of war, however, the law still gives the president executive authority to intervene in the energy economy under other scenarios.
Action on ‘Day 1’
Vice President Kamala Harris, the Democratic nominee, is no stranger to the politics of presidential emergency declarations.
Climate hawks in Congress and environmental groups that helped elect Biden and Harris in 2020 have pushed for a “climate emergency” declaration. Nothing like it has ever been tried. But in theory it would open up powers to slash oil exports, or boost factory orders for clean energy technology or direct more zero-carbon energy production.
“I have continuously preached the need for a climate emergency; I tried to get Biden to do it on Day 1; I‘d love for Kamala to do it on Day 1,” Oregon Democratic Sen. Jeff Merkley said. “But I don’t think that’s what she’s focused on right now.”
Biden and Harris have made no suggestion they think an emergency declaration to address climate change is on the table.
The only public clues to where Trump stands on the question of emergency authority go back to his presidency.
Trump took office in 2017 promising to help out “my coal miners” as thanks to voters in Pennsylvania and parts of the Midwest and mountain states. After meeting with a coal and a utility executive shortly after his inauguration, Trump reportedly gave orders that a senior White House official should “do whatever these two want,” according to the late Robert Murray, who was chief executive of Murray Energy Corp.
“The Trump administration’s efforts to bail out aging and uncompetitive baseload plants, particularly those powered by coal, began almost immediately,” noted Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, and Sharon Jacobs, a Berkeley School of Law professor, in a 2019 paper.
The first attempt was a request from former Energy Secretary Rick Perry to the Federal Energy Regulatory Commission to tilt power markets toward coal. When the commission with appointees from both parties unanimously opposed the secretary’s idea, Perry’s policy staff looked to executive authority.
The 2018 memo to Trump and his national security team said emergency powers could be invoked under section 202(c) of the 1935 Federal Power Act. Congress strengthened the authority in 2015.
The section grants broad powers to order the production or delivery of power “to serve the public interest” if electricity shortages are deemed an emergency by the secretary of Energy. Under those conditions, power plants can run at maximum capacity and out of compliance with pollution limits.
The first use of the authority came in 1941, when the government ordered Florida Power & Light to keep power plants running as a massive military and industrial buildup began six months before the Pearl Harbor attack, according to an analysis by Harvard Law School graduate Benjamin Rolsma, scheduled for publication in the Connecticut Law Review.
The authority has been used sparingly since the end of the war. During Biden’s presidency, DOE authorized grid operators to max out generation as heat ravaged California and as extreme weather conditions shut down power plants in the eastern U.S. and in Texas.
‘Keeps me up at night’
A Trump victory in November could write a new chapter for the authority.
“Section 202(c) explicitly mentions wartime emergencies, but its limits are unclear,” said Travis Fisher, an economist at the Cato Institute and a former DOE official who helped develop Trump administration policies on electricity.
The Trump administration’s DOE policy memo from 2018 argued that DOE authority was designed “not merely to react to actual disasters, but to act in a preventative manner.”
“The statute provides that the DOE could, upon its own motion, with or without notice, determine an emergency exists based on energy shortages or other causes,” Fisher told POLITICO’s E&E News. “The idea that the DOE could invoke 202(c) and create a new national energy policy out of an alleged emergency keeps me up at night.”
Fisher said struggling nuclear plants might be best positioned to lobby Congress or the administration for more support.
“A blanket 202(c) order — premised on either a climate or national security emergency — could keep every existing nuclear reactor operating. I strongly disagree with using 202(c) in that fashion, but I could imagine either party doing it,” Fisher said.
Rolsma described a different scenario: “Section 202(c)’s role is set to expand,” Rolsma wrote. “Climate change and the ongoing energy transition, by disrupting the way the electrical grid has historically operated, will ratchet up the pressure” for its use.
Because the electric grid will rely on coal and gas for years to come, the emergency authority could also get a new life if Harris wins. Biden’s EPA has adopted the Federal Power Act section as a safety valve that could keep some fossil plants open to assure grid reliability while others are forced to capture and dispose of their carbon emissions or shut down.
Along with its repeated warning about a shrinking electric power reserve supply, the North American Electric Reliability Corp. (NERC), the interstate grid’s security monitor, has urged that the 202(c) authority be used to keep particular fossil plants running when essential to keep the lights on.
“The big question is, are you going to use this tool surgically or try to pursue it more broadly?” said Devin Hartman, director of energy and environmental policy at the libertarian R Street Institute.
“The more this strays from the underlying identification of reliability needs, the more suspect it will be legally,” he said, “and the worst type of policy it will be. So you really have to contain and use these things sparingly.”
