[co-author: Shawn Whites, Paralegal]
On March 26, 2019, President Trump signed an executive order (EO) to “establish[] the first ever comprehensive whole-of-government policy to build resilience and protect against electromagnetic pulses” (EMPs), which can cause widespread disruption or damage to electrical and other technology systems.1 The EO refers to two types of EMPs: (1) “high-altitude EMP[s],” which are “a type of human-made EMP that occurs when a nuclear device is detonated at approximately 40 kilometers or more above the surface of Earth;” and (2) “geomagnetic disturbance[s]” (GMDs), which are “a type of natural EMP driven by a temporary disturbance of Earth’s magnetic field resulting from interactions with solar eruptions.” The EO “directs action to protect key systems, networks, and assets that are most at risk from an EMP in a dynamic threat environment” and to increase “public and private coordination and planning” to address this potential threat.2
The EO directs a variety of actions “in five areas to reduce the risk that EMPs pose to U.S. critical technology and infrastructure systems,” including: “(1) identify[ing] national critical functions and associated priority critical infrastructure at greatest risk from EMPs; (2) improv[ing] understanding of EMP effects; (3) evaluat[ing] approaches to mitigate the effects of EMPs; (4) strengthen[ing] critical infrastructure to withstand the effects of EMPs; and (5) improv[ing] national response to EMP events.”3 In addition, the EO “promotes government and private sector innovation, directing the Federal agencies to further the research and development necessary to build the Nation’s resilience to EMP events,” and carves out roles and responsibilities for the Assistant to the President for National Security Affairs, National Security Council staff, the Director of the Office of Science and Technology Policy, the National Science and Technology Council, the Secretaries of Energy, State, Defense, Interior, Commerce, and Homeland Security and the Director of National Intelligence.
The EO does not include any specific role for the Federal Energy Regulatory Commission (FERC), which in 2016 approved North American Electric Reliability Corporation (NERC) Reliability Standard TPL-007-1 (Transmission System Planned Performance for Geomagnetic Disturbance Events) and in 2017 directed NERC to “develop certain modifications to Reliability Standard TPL-007-1 and submit a work plan and, subsequently, one or more informational filings that address specific [GMD]-related research areas.”4 In November 2018, FERC approved Reliability Standard TPL-007-2, finding that the updated standard “better addresses the risks posed by [GMDs] to the Bulk-Power System, particularly with respect to the potential impacts of locally-enhanced GMD events,” and complied with FERC’s 2016 directives. Most recently, in February 2019, NERC “add[ed] a regional Variance for Canadian jurisdictions,” but did not otherwise change “any of the continent-wide Requirements of Commission-approved Reliability Standard TPL-007-2.”5
1 Department of Energy (DOE) press release, “President Trump Signs Executive Order for Resilience Against Electromagnetic Pulses” (Mar. 26, 2019) (available here).
2 Id.
3 Id.
4 Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events, Order No. 830-A, 158 FERC ¶ 61,041, at P 1 (2017).
5 NERC, Informational Filing Regarding Reliability Standard TPL-007-3 Transmission System Planned Performance for Geomagnetic Disturbance Events, FERC Docket No. RM18-8-000, at 1 (filed Feb. 21, 2019) (available here).
