Opposition To Trump’s Evisceration of Electricity Export Regulations
By Tyson Slocum
The full 3 page pdf filing is here: SlocumElectricityExports
The U.S. Department of Energy (DOE) proposes to unlawfully eviscerate the Section 202e mandate of the Federal Power Act that ensures electricity exports do not “impair the sufficiency of electric supply within the United States”. On May 16, DOE published a notice of proposed rulemaking to replace the current standard of review with whatever energy companies suggest: the proposed rule “will simply allow applicants to include information the applicant deems relevant to such an authorization for consideration by the DOE under the Federal Power Act”. DOE justifies the proposed rule by claiming its objective is to bolster “American energy dominance by increasing exports and subsequently the reliance of foreign nations on American energy.” But the Federal Power Act’s regulation of electricity exports contains no mention that Congress sought a purpose of “increasing exports”; rather, the Congressional mandate in subjecting electricity exports to review was to ensure “the sufficiency of electric supply within the United States”. The proposed rule is contrary to the plain language of the Federal Power Act and cannot be adopted.
The notice of proposed rulemaking published in the federal register lists the incorrect statutory citation. The notice states “DOE is proposing to amend the application process codified in 10 CFR 205.300 through 309. Statutory authority for these sections can be found at 16 U.S.C. 824(e)”. But the statutory citation is not 16 U.S.C. 824(e) — it is 16 USC § 824a(e). 16 USC 824(e) is Section 201 of the Federal Power Act and defines “public utility”. 16 USC § 824a(e) is Section 202 of the Federal Power Act which governs electricity exports. DOE’s inaccurate statutory citation is a fatal error of the proposed rule, and therefore must be rejected.
The Federal Power Act was enacted in the midst of the Great Depression, with the primary goal of protecting customers from economic exploitation at the hands of utilities, as Section 201 states “that the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest.” Section 202a of the Federal Power Act declares its purpose as “assuring an abundant supply of electric energy throughout the United States with the greatest possible economy”. Section 202e of the Federal Power Act mandates that “no person shall transmit any electric energy from the United States to a foreign country without first having secured an order of the Commission authorizing it to do so. The Commission shall issue such order upon application unless, after opportunity for hearing, it finds that the proposed transmission would impair the sufficiency of electric supply within the United States or would impede or tend to impede the coordination in the public interest of facilities subject to the jurisdiction of the Commission.”
Congress was therefore clear that the purpose of Section 202 of the Federal Power Act is “assuring an abundant supply of electric energy throughout the United States” and disallowing “any electric energy” exports if they “would impair the sufficiency of electric supply within the United States”. There is literally nothing in the Federal Power Act that justifies DOE’s proposal to encourage “American energy dominance by increasing exports and subsequently the reliance of foreign nations on American energy.” DOE’s entire rationalization for the proposed rule is unsupported by the plain statutory text of the Federal Power Act.
It is absurdly inappropriate and contrary to any standard of review of the Federal Power Act’s statutory language to allow companies to make up whatever standard they see fit, which is exactly what the proposed rule does. The proposed rule “will simply allow applicants to include information the applicant deems relevant to such an authorization for consideration by the DOE under the Federal Power Act”. This radical and unsupported standard would allow applicants seeking to export electricity to determine whatever standard of review they desire. That is inconsistent with the clear Federal Power Act mandate, and must be rejected.
Furthermore, recent Trump Administration emergency orders suggest the United States faces domestic electricity shortages, and the proposed rule would exacerbate those shortages by granting applications to export electricity with no effective standard of review. On May 23, the DOE Secretary issued an emergency order under Section 202c of the Federal Power Act which determined “that an emergency exists in portions of the Midwest region of the United States due to a shortage of electric energy, a shortage of facilities for the generation of electric energy, and other causes”. The coal power plant in question that was ordered to address the energy emergency is less than 200 miles from the Canadian border. DOE’s proposed rule would result in increased electricity exports, thereby making the energy shortage worse for Americans. The proposed rule is contrary to the circumstances presented by the DOE Secretary in his May 23 emergency order.
The proposed rule is also contradicted by the President’s declared National Energy Emergency. President Donald J. Trump issued Executive Order 14156 on January 20, 2025, declaring a National Energy Emergency, determining that:
The energy and critical minerals identification, leasing, development, production, transportation, refining, and generation capacity of the United States are all far too inadequate to meet our Nation’s needs . . . our Nation’s inadequate energy supply and infrastructure causes and makes worse the high energy prices that devastate Americans, particularly those living on low- and fixed-incomes . . . These numerous problems are most pronounced in our Nation’s Northeast and West Coast, where dangerous State and local policies jeopardize our Nation’s core national defense and security needs, and devastate the prosperity of not only local residents but the entire United States population. The United States’ insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security, and foreign policy. In light of these findings, I hereby declare a national emergency.
The circumstances claimed by the President of the United States in his National Energy Emergency declaration—”our Nation’s inadequate energy supply and infrastructure causes and makes worse the high energy prices that devastate Americans . . . The United States’ insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security, and foreign policy”—conflict with the purpose of the proposed rule.
The proposed rule is ill-conceived; unsupported by the plain text of the Federal Power Act; contradicts the President’s National Emergency Declaration and the DOE Secretary’s emergency orders; and contains incorrect statutory citations, and therefore must be rejected.