A new executive order from President Donald Trump that’s part of his effort to invigorate energy production raises the possibility that his Department of Justice will go to court against state climate change laws aimed at slashing planet-warming greenhouse gas pollution from fossil fuels.
Trump’s order, signed Tuesday, comes as U.S. electricity demand ramps up to meet the growth of artificial intelligence and cloud computing applications, as well as federal efforts to expand high-tech manufacturing. It also coincides with “climate superfund” legislation gaining traction in various states.
Trump has declared a “national energy emergency” and ordered his attorney general to take action against states that may be illegally overreaching their authority in how they regulate energy development.
“American energy dominance is threatened when State and local governments seek to regulate energy beyond their constitutional or statutory authorities,” Trump said in the order.
He said the attorney general should focus on state laws targeting climate change, a broad order that unmistakably puts liberal states in the crosshairs of Trump’s Department of Justice.
Michael Gerrard, director of the Columbia University’s Sabin Center for Climate Change Law, said it would be an “extraordinarily bold move” for the federal government to go to court to try to overturn a state climate law.
Gerrard said the quickest path for Trump’s Department of Justice is to try to join ongoing lawsuits where courts are deciding whether states or cities are exceeding their authority by trying to force the fossil fuel industry to pay for the cost of damages from climate change.
Democrats say they won’t back down
Democratic governors vowed to keep fighting climate change.
California Gov. Gavin Newsom accused Trump of “turning back the clock” on the climate and said his state’s efforts to reduce pollution “won’t be derailed by a glorified press release masquerading as an executive order.”
New York Gov. Kathy Hochul and New Mexico Gov. Michelle Lujan Grisham, cochairs of the U.S. Climate Alliance, which includes 22 governors, said they “will keep advancing solutions to the climate crisis.”
Climate superfund laws are gaining traction
Vermont and New York are currently fighting challenges in federal courts to climate superfund laws passed last year. Trump suggested the laws “extort” payments from energy companies and “threaten American energy dominance and our economic and national security.”
Both are modeled on the 45-year-old federal superfund law, which taxed petroleum and chemical companies to pay to clean up of sites polluted by toxic waste. In similar fashion, the state climate laws are designed to force major fossil fuel companies to pay into state-based funds based on their past greenhouse gas emissions.
Several other Democratic-controlled states, including New Jersey, Massachusetts, Oregon and California, are considering similar measures.
The American Petroleum Institute, which represents the oil and natural gas industries, applauded Trump’s order that it said would “protect American energy from so-called ‘climate superfunds.’”
“Directing the Department of Justice to address this state overreach will help restore the rule of law and ensure activist-driven campaigns do not stand in the way of ensuring the nation has access to an affordable and reliable energy supply,” it said.
Court battles are already ongoing
The American Petroleum Institute, along with the U.S. Chamber of Commerce, filed the lawsuit against Vermont. The lawsuit against New York was filed by West Virginia, along with several coal, gas and oil interests and 21 other mostly Republican-led states, including Texas, Ohio and Georgia.
Make Polluters Pay, a coalition of consumer and anti-fossil fuel groups, vowed to fight Trump’s order and accused fossil fuel billionaires of convincing Trump to launch an assault on states.
The order, it said, demonstrates the “corporate capture of government” and “weaponizes the Justice Department against states that dare to make polluters pay for climate damage.”
Separately, the Department of Justice could join lawsuits in defense of fossil fuel industries being sued, Gerrard said.
Those lawsuits include ones filed by Honolulu, Hawaii, and dozens of cities and states seeking billions of dollars in damages from things like wildfires, rising sea levels and severe storms.
In the last three months, the U.S. Supreme Court has declined to get involved in a couple climate-themed lawsuits.
One was brought by oil and gas companies asking it to block Honolulu’s lawsuit. Another was brought by Alabama and Republican attorneys general in 18 other states aimed at blocking lawsuits against the oil and gas industry from Democratic-led states, including California, Connecticut, Minnesota, New Jersey and Rhode Island.
Trump’s order set off talk in state Capitols around the U.S.
That includes Pennsylvania, where the governor is contesting a court challenge to a regulation that would make it the first major fossil fuel-producing state to force power plant owners pay for greenhouse gas emissions.
John Quigley, a former Pennsylvania environmental protection secretary and a senior fellow at the University of Pennsylvania’s Kleinman Center for Energy Policy, wondered if the Department of Justice would begin challenging all sorts of state water and air pollution laws.
“This kind of an order knows no bounds,” Quigley said. “It’s hard to say where this could end up.”
