Why Trump’s executive order targeting state climate laws is probably illegal
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President Donald Trump continued dismantling U.S. climate policy this week when he directed the Justice Department to challenge state laws aimed at addressing the crisis — a campaign legal scholars called unconstitutional and climate activists said is sure to fail.
The president, who has called climate change a “hoax,” issued an executive order restricting state laws that he claimed have burdened fossil fuel companies and “threatened American energy dominance.” His directive signed Tuesday night, is the latest in a series of moves that have included undermining federal climate and environmental justice programs, withdrawing from the Paris Agreement, and promising to expand oil and gas leases.
It specifically mentions California, Vermont, and New York, three states that have been particularly assertive in pursuing climate action. The order directs Attorney General Pam Bondi to identify and report state laws that focus on climate change or promote environmental social governance, and to halt any that “the attorney general determines to be illegal.”
That directive almost certainly includes the climate superfund laws that New York and Vermont recently passed. The statutes require fossil fuel companies to pay damages for their emissions, a move the executive order deems “extortion.” The president’s order also gives Bondi 60 days to prepare a report outlining state programs like carbon taxes and fees, along with those mentioning terms like “environmental justice” and “greenhouse gas emissions.”
“These state laws and policies are fundamentally irreconcilable with my administration’s objective to unleash American energy,” the executive order reads. “They should not stand.”
Legal scholars, environmental advocates, and at least one governor have said Trump’s effort to roll back state legislation is unconstitutional, and court challenges are sure to follow. “The federal government cannot unilaterally strip states’ independent constitutional authority,” New York Governor Kathy Hochul said in a statement on behalf of the United States Climate Alliance, a coalition of 24 states working toward emissions reductions.
Although critics of the move said Trump is on shaky legal ground, forcing state and local governments to litigate can have a chilling effect on climate action. Beyond signaling the administration’s allegiance to the fossil fuel interests that helped bankroll his campaign, Trump’s order is “seeking to intimidate,” said Kathy Mulvey, the accountability campaign director for the climate and energy program at the Union of Concerned Scientists.
“It seems pretty hypocritical for the party that claims to be about the rights of states to be taking on or seeking to prevent states from taking action,” she said.
The American Petroleum Institute praised the order, saying it would “address this state overreach” and “help restore the rule of law.”
Trump’s order comes several weeks after fossil fuel executives gathered at the White House to warn the president about increasing pressure from state lawsuits, including moves to claim polluters are guilty of homicide. Trump told the executives he would take action, according to E&E News.
“This executive order parrots some of the arguments that we’ve seen from companies like Exxon Mobil, as they’ve sought to have climate cases removed from federal court, and then dismissed in the state courts,” Mulvey says.
The president announced the move while standing in front of coal miners gathered for a White House ceremony during which he signed a separate executive order supporting what he called the “beautiful, clean coal” industry. That order removed air pollution limits and other regulations adopted by the Biden administration. “The ceremony as a whole was mainly about theatrics and bullying,” says Kit Kennedy, managing director of power, climate, and energy at Natural Resources Defense Council.
Experts say economics makes a resurgence of coal unlikely. For the last two decades, the industry has steeply declined as utilities have embraced gas and renewables like wind and solar, all of which are far cheaper. In California, which banned utilities from buying power from coal-fired plants in other states in 2007 and established a cap and trade program where power plants have to buy credits to pay for their pollution, emissions have fallen while the economy has grown. Such programs may be targeted by the president’s recent executive orders.
“It should be clear by now that the only thing the Trump administration’s actions accomplish is chaos and uncertainty,” Liane Randolph, who chairs the California Air Resources Board, said in a statement.
It remains unclear how the executive order will be implemented. “The executive branch doesn’t actually have authority to throw out state laws,” Mulvey said. States have a well-established primacy over environmental policies within their borders. The executive order would turn that on its head. “It’s hard to imagine a scenario in which the DOJ challenging the states on these policies would be successful,” Kennedy said.
That’s not to say the Trump administration can’t take steps to fulfill the objectives outlined in the order. Even if the executive order doesn’t overturn state laws directly, climate advocates worry the Trump administration will threaten to withhold federal funding for other programs, like highways, if they don’t comply.
“The executive order itself has no legal impact, but the actions that government agencies will take in pursuit would, and many of those will be vigorously challenged in court,” said Michael Gerrard, faculty director of Columbia University’s Sabin Center for Climate Change Law.
It was immediately clear that at least some states aren’t going to back down. “This is the world the Trump administration wants your kids to live in,” California Governor Gavin Newsom said in a statement. “California’s efforts to cut harmful pollution won’t be derailed by a glorified press release masquerading as an executive order.”
Republican states benefited the most from the 2022 Inflation Reduction Act, a strategy some advocated could make the bipartisan legislation harder for future administrations to rescind. Ironically, Kennedy says, they aren’t necessarily labeled as climate policies, potentially sparing funding for things like battery manufacturing facilities in the South from the executive order. “They’re simply going about the business of creating the clean energy economy,” Kennedy said.
That progress makes the executive order’s “lawless assault” galling, said Senator Sheldon Whitehouse (D-RI). “Not only does this latest Big Oil fever dream violate state sovereignty,” he wrote to Grist, “it tries to void decades of state-enacted policies that lower energy costs for families, protect clean air and water, reduce the carbon pollution responsible for climate change, and protect Americans from the price shocks of dependence on fossil fuels.”
This article originally appeared in Grist at https://grist.org/politics/why-trumps-executive-order-targeting-state-climate-laws-is-probably-illegal/.
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