An Uncertain Future For U.S. Energy Policy

In a conversation with The Regulatory Review, Professor Emily Hammond provides their perspective on the Trump Administration’s efforts to control independent agencies and how those efforts may influence U.S. energy and environmental policies. Hammond also reflects on their background as an engineer conducting environmental remediation and how that work prepared them for a subsequent career as a lawyer and legal scholar.

The Trump Administration has claimed authority over independent agencies such as the Federal Energy Regulatory Commission (FERC). This shift in how the President interacts with these agencies could profoundly impact U.S. energy policy. Hammond explains how a loss of agency independence could result in uncertainty, making it more difficult for climate-friendly energy companies to enter the market. They also express concern over the potential reversal of the U.S. Environmental Protection Agency’s (EPA) endangerment finding—that six greenhouse gases threaten public health and welfare under the Clean Air Act—in the fight against climate change.

In a time when administrative agency power may be weakened, Hammond also reflects on their previous scholarship about the role of community protest in advocating for green policies. They conclude by offering advice to STEM students considering a legal career and how their background has benefited Hammond’s perspective as a legal scholar.

Hammond is the Glen Earl Weston Research Professor of Law at The George Washington University Law School. They are a nationally recognized energy, environmental, and administrative law scholar and serve as the faculty director of academic sustainability programs within the GW University Alliance for a Sustainable Future. President Biden previously appointed them to serve as the deputy general counsel for litigation, regulation, and enforcement at the U.S. Department of Energy. Hammond is a member of the Administrative Conference of the United States and an elected member of the American Law Institute.

The Regulatory Review is pleased to share the following interview with Emily Hammond.

The Regulatory Review: You recently commented on the Trump Administration’s push to assert control over independent agencies such as FERC.  What are your concerns about this push?

Hammond: The Supreme Court has continued to cast further doubt on independent agency structure. But Congress created the classic independent agency for good reasons, among them shielding agency applications of technical expertise from political interference. This was accomplished with attributes like good-cause removal protection, multi-member structures, staggered terms, and representational requirements. FERC’s procedures are quite detailed and technical, and by congressional design, they involve multiple layers of decision-making. I am concerned about the ways naked political pressures could disrupt those procedures and lead to arbitrary outcomes.

TRR: Are there any implications for environmental or energy policy?

Hammond: Yes, we might expect to see deeply pronounced policy swings that are more akin to what executive agencies experience. It’s true that there is already some policy fluctuation, even at independent agencies. FERC, for example, is under considerable pressure to make it harder for renewable energy sources to compete in wholesale electricity markets. We saw some inroads there under the first Trump Administration. But were FERC to lose its independence, I would expect regulatory uncertainty to become even more pronounced, which is especially problematic for new, green market entrants that lack the entrenched inertia of traditional fossil-fueled market participants.

TRR: The Trump Administration has also sought to reduce the federal government’s role in fighting climate change. Are there any recent actions that you find particularly important to monitor?

Hammond: First and foremost, I am deeply concerned about the rule of law. Among many threats, there is the Trump Administration’s failure to comply with court orders and procedural due process protections; its attempts at coercion of institutions of higher education, law firms, and the American Bar Association; and its unadorned animus toward historically marginalized groups of people. Many of these actions were documented in a letter by the Association of American Law Schools. These actions undermine the system on which ordinary administrative law is premised, regardless of one’s policy preferences.

Of course, I am also monitoring efforts to reverse EPA’s endangerment finding from 2009, which stated that greenhouse gases threaten public health. These efforts may tee up a reconsideration of the Supreme Court’s decision in Massachusetts v. EPA, which allowed EPA to regulate greenhouse gases as air pollutants under the Clean Air Act. I am also following the Department of Energy’s proposed rollbacks of a host of appliance efficiency standards, and am deeply concerned about the impacts of demolishing EPA’s Office of Environmental Justice and External Civil Rights and the Energy Department’s Office of Energy Justice and Equity.

TRR: Five years ago, you wrote an article calling for research into the role of community protest in energy policy and environmental law.  Is that research still necessary?

Hammond: Protest movements, community vetoes, and other direct actions can reveal important disconnects between government policies and people’s lived experiences. Although administrative law offers regularized channels for people to engage on policy issues, such as those related to energy and the environment, it does not quite know what to do with direct action. The social sciences have more to say about this topic, and I am excited about legal research that stretches outside of doctrine and procedure to engage at the boundaries of law.

TRR: Considering the current Administration’s rollbacks in U.S. climate policy, do you anticipate the role of community involvement and protest in environmental and energy policy shifting over the next few years? If so, how?

Hammond: Communities are where new ways of ordering ourselves can be imagined and implemented. I expect to see significant creativity now and in the coming years. At the same time, I worry about unnecessary suffering that is traceable to these new federal policies, and I expect to see that reflected in direct action.

TRR: On a different note, you worked as an environmental engineer before law school. That is not a typical pre-law career. What work did you do as an engineer, and what drew you to law school?

Hammond: Among other things, I worked in environmental remediation before going to law school. Many of my clients were cleaning up hazardous waste in groundwater and soils under consent decrees with EPA. I became fascinated—and often frustrated—with how the legal system was setting the upper limits of my design choices. For example, we often had the technical capability to clean up contamination much more thoroughly than what the law required, and, of course, clients weren’t willing to pay for that extra. I was motivated to better understand the way law, policy, science, and technology interact.

TRR: How has your engineering background influenced your legal career and scholarship? Do you have any advice for engineering—or other STEM—students considering a legal career?

Hammond: Something I appreciate about my engineering training and experience is that it taught me systems thinking and how to have some comfort with uncertainty. Those skills translate quite well to the legal profession, and that’s what I emphasize to STEM folks who are considering legal careers. In addition, having a scientific and technical vocabulary opens a lot of interesting doors. My research, of course, often explores how our legal institutions engage with scientific and technical expertise. But—as just one example—I recently had the opportunity to serve as a presidential appointee at the Energy Department. One of my roles was serving as counsel to the Office of Environmental Management, which cleans up legacy nuclear and hazardous waste all over the country. My prior experience allowed me to collaborate with lawyers and engineers in furtherance of that mission, and it was deeply satisfying work.