Trump Attack on State Climate Laws Likely Doomed, but Attempts to Yank Funds May Be Next
By Jacob Fischler for States Newsroom
An executive order President Donald Trump signed Tuesday to block state-level renewable-energy initiatives set off alarm bells among climate advocates.
But experts and state policy groups said constitutional protections will blunt any effect the order would have on state operations.
The order, one of four Trump signed Tuesday aiming to revitalize the coal industry, directs the U.S. Justice Department to investigate and block enforcement of state laws that restrict fossil fuel production. It specifically targets state and local policies involving climate change, environmental justice and carbon emissions reductions — popular among blue states.
By attempting to strip states of their own authority to make and enforce laws, the order violates basic constitutional principles and would likely be struck down in court, environmental law experts said Wednesday.
Brad Campbell, the president of the New England-based environmental advocacy group Conservation Law Foundation, said in an interview with States Newsroom the order does not cite any federal law or interest the administration is seeking to protect — though the order does mention interstate commerce and an objective to improve national security — revealing it is more about messaging than policymaking.
“This is political theater more than it is law,” Campbell said. “It completely disregards the understanding of federalism that has been in place for centuries and the language of the Constitution itself.”
While the order itself may be unlikely to withstand legal scrutiny, it signals the administration could make demands about climate policy that would have to be obeyed at risk of losing federal cash, advocates said.
Trump officials already have shown an eagerness in their first months for using federal funding as leverage with states, universities and other institutions that are outside the federal government’s control.
In a statement, White House spokeswoman Taylor Rogers said Wednesday the order would protect against states assuming the power to regulate international issues like climate change.
“The President is right to ensure that Americans in both red and blue states are not beholden to State overreach stifling American energy that are unconstitutional or contradict federal law,” she said.
Climate Action ‘Irreconcilable’ With Trump Agenda
The order includes a lengthy preamble attempting to justify federal involvement in state and local policymaking, while also noting that state policies focusing on emissions reductions and climate protections are at odds with Trump’s goals.
“These State laws and policies try to dictate interstate and international disputes over air, water, and natural resources; unduly discriminate against out-of-State businesses; contravene the equality of States; and retroactively impose arbitrary and excessive fines without legitimate justification,” the order’s opening section reads.
“These State laws and policies are fundamentally irreconcilable with my Administration’s objective to unleash American energy. They should not stand.”
At the Tuesday signing ceremony for the order and three others on coal production, White House Staff Secretary Will Scharf told the president that states promoting renewable sources of energy were a major part of the coal industry’s decline.
“One of the biggest problems we have in this space is Democrat states, radical leftist states, enacting policies and enacting an agenda that discriminates against coal, against secure sources of energy,” Scharf said.
The order, though, does little to change the market and technological forces that have led to the coal industry’s decline, Erik Schlenker-Goodrich, the executive director of the environmental group Western Environmental Law Center, said Wednesday.
“I just don’t see how the order … is going to do anything but create confusion and uncertainties for communities that are transitioning away from coal right now,” he said.
“In many respects, it does an injustice to those communities by giving them a false sense of hope that somehow coal mines and coal-fired power plants are suddenly going to be resurrected from the dead or be pushed well beyond their economic and technological lifespan.”
“The federal government cannot unilaterally strip states’ independent constitutional authority,” they said. “We are a nation of states — and laws — and we will not be deterred.”
States Undeterred
Environmental lawyers and climate advocates said the order does not change the constitutional structure of the U.S. government that empowers states to set their own laws.
Casey Katims, the executive director of the U.S. Climate Alliance, a coalition of 24 governors seeking to prioritize state-focused climate policy, said the group’s members would not be moved by the order.
“The reality is that states continue to enjoy broad, independent constitutional authority to advance solutions to meet the needs of communities, businesses and workers,” Katims said in a Wednesday interview. “The president cannot change the Constitution by fiat.”
The group’s co-chairs, New Mexico Governor Michelle Lujan Grisham and New York Governor Kathy Hochul, both Democrats, said in a Tuesday statement the administration had no power to block state authority and the coalition would be undeterred by the order.
“The federal government cannot unilaterally strip states’ independent constitutional authority,” they said. “We are a nation of states — and laws — and we will not be deterred.”
If the Justice Department, under Attorney General Pam Bondi, sues to stop enforcement of state laws, courts would likely reinforce states’ well-understood power to govern themselves, Campbell said.
Even the U.S. Supreme Court, which has a conservative supermajority that includes three members appointed by Trump and has shown deference to even the most controversial actions of his second presidency, would move to restrain that federal power, Campbell predicted.
“I think the notion that the president can stop enforcement of state laws that don’t align with his political program will be too much of an overreach even for this very Trump-friendly Supreme Court majority,” he said.
Further, he said, even Republican governors, whose party has traditionally advocated for increased states’ rights in relation to the federal government, might object to the intrusion of the executive branch into state policymaking. Allowing action under the order would set a precedent for a future Democratic president to meddle in Republican states, he said.
Federal Funding
The lack of legal authority to directly block enforcement of state laws may not keep the Trump administration from exercising power in another way: withholding federal funds from uncooperative states.
The order signals the administration, which has been bold in asserting a power to deny congressionally appropriated funding, could target states over climate policy, Schlenker-Goodrich said.
“Do they have a legal basis? Not really,” he said. “Can they use political weapons, in particular relative to funding, against states that are stepping up on climate action? That is very much a possibility. That is the direction you will see the White House going.”
Sure, let's not do anything about one of the major threats to mankind (and all other species on the planet).