On January 20, 2017, President Trump’s Chief of Staff, Reince Priebus, issued a memorandum to the heads of executive departments and agencies implementing a “regulatory freeze” on new regulations. The memorandum requires departments and agencies to:

• Send no new regulations to the Office of the Federal Register (OFR) for publication until such regulations are reviewed and approved by a department or agency head appointed or designated by President Trump after noon on January 20, 2017;
• Withdraw all regulations sent to OFR but not yet published; and
• Postpone for 60 days the effective date of all regulations that have been published by OFR but have not yet taken effect.

Such a memorandum is not unprecedented – Rahm Emanuel issued a similar memorandum in 2009. However, the current memorandum and its potential effects differ from historical action in three ways.

First, the Priebus memorandum eliminates the discretion afforded to agencies and departments by the 2009 memorandum, which requested that they “consider” extending the effective date of regulations for 60 days. The memorandum therefore impacts all regulations, regardless of whether they may be acceptable or desirable to incoming appointees and designees.

Second, its impact is likely to be longer-lasting than during previous Administrations. None of the appointees with a direct influence on energy and natural resource issues (i.e., the EPA Administrator, Secretary of Energy, Secretary of the Interior, and Secretary of Agriculture) has been confirmed by the Senate, and in each case the confirmation vote either has not been scheduled or has been rescheduled until further notice. In contrast, Lisa Jackson was confirmed as EPA Administrator on January 23, 2009; Steven Chu was confirmed as Secretary of Energy on January 20, 2009; Ken Salazar was confirmed as Secretary of the Interior on January 21, 2009; and Tom Vilsack was confirmed as Secretary of Agriculture on January 21, 2009. The longer such confirmations are delayed, the longer it will take to see any review or action on new regulations.

And third, the reach of the Priebus memorandum is much more broad. In addition to the “regulatory actions” at issue in the 2009 memorandum, it expressly includes “guidance documents” (i.e., any agency statement of general applicability and future effect “that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.” In addition, although the definition of “regulatory action” is limited to “any substantive action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking,” some agencies and departments have been interpreting the directive to include all documents submitted to the Federal Register for publication.

This could have unintended consequences. Energy and natural resource development projects often require publication of notices in the Federal Register, including notices relating to the issuance of permits required for construction or operation. The memorandum intended to delay the publication of new regulations may delay publication of these notices as well. This regulatory freeze may therefore have a more chilling effect on project development – and for a longer time – than we’ve seen in the past.