On April 8, the Trump administration issued the “Protecting American Energy From State Overreach” executive order (EO), another in a blitz of orders and declarations focused on the energy sector. As with the other energy-related EOs, it contains numerous references to advancing so-called “energy dominance” — which is largely and ideologically focused on fossil fuel industries — despite the United States already being “dominant” in this sector.
Although tonally similar to prior energy EOs — attacking and deriding states in New England and along the West Coast while being broadly contemptuous toward actions targeting climate change — the direction this EO takes is something of a departure. Rather than seeking to expedite federal permitting and applications by removing, for example, environmental impact assessments, or prolonging the life of economically non-competitive coal generators, this order directs the Department of Justice (DOJ) to overreach its authority and attack state laws and policies that are well within the states’ constitutionally designated powers.
Specifically, this EO directs the DOJ to attack state climate and environmental initiatives. These initiatives fall broadly into two discrete buckets: policies that seek to hold fossil fuel polluters accountable for the economic impact of their emissions, and state laws related to permitting and utilization priorities for energy resourcing.
In terms of economic impacts, this includes forward-looking programs like Washington state’s cap and invest program (which voters strongly supported in a recent ballot initiative) and East Coast states’ Regional Greenhouse Gas Initiative, which sets limits on greenhouse gas emissions and recoups the “externality” costs of fossil fuel generation. Both of these programs further benefit people and communities by investing revenues in climate mitigation and adaptation programs.
The Trump EO directs particular venom at state legal frameworks, such as those of New York and Vermont, to pursue climate Superfund litigation. These laws seek to hold fossil fuel companies legally responsible for the harms that 80+ years of emissions have caused. But the approach of an outside attorney general intervening in climate Superfund laws is one that, thus far, the U.S. Supreme Court has rejected (as recently as March).
Furthermore, questions of preemption, constitutionality, or enforceability of state permitting, siting, production, or other functions of energy development are subject to the legal authority and responsibility of the states under the 10th Amendment of the United States Constitution. While it is true that certain federal obligations do apply to state permitting processes — for example, the Clean Air Act — these obligations typically establish a regulatory floor, rather than a ceiling that preempts state laws that go further in providing stronger protections than federal laws or regulations.
Given the lack of legal basis for DOJ’s interference with state climate laws and policies, what does this EO really purport to do? The answer seems to be an effort to use the DOJ to strong-arm states into abandoning their constitutional right and responsibility to provide for the public welfare in the face of climate change. Or, at a minimum, to inject sufficient uncertainty, chaos, and confusion to cause a chilling effect on other states that, seeing a retreat by the federal government in addressing and funding climate change programs, might wish to adopt similar climate financing and climate-focused permitting policies.
At the end of the day, who does this benefit? As noted, the United States is already dominant in the fossil fuel sector, and this broadside against state climate policies is unlikely to alleviate energy costs or burden to residents. It would certainly result in more pollution, warming, and health problems in communities already overburdened by such harms while handing yet another giveaway to the fossil fuel industry by allowing it to escape liability and accountability for decades of pollution. This means that, as Americans across the states work to adapt to climate change, they will be left paying the price for the industry’s harms.
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Bryan Dunning | April 16, 2025
On April 8, the Trump administration issued the “Protecting American Energy From State Overreach” executive order (EO), another in a blitz of orders and declarations focused on the energy sector. As with the other energy-related EOs, it contains numerous references to advancing so-called “energy dominance” — which is largely and ideologically focused on fossil fuel industries — despite the United States already being “dominant” in this sector.
Sophie Loeb | April 15, 2025
In the midst of countless federal deregulatory actions, it’s easy to lose track of what’s happening to undermine states’ climate regulations and laws. Here in North Carolina, we are facing the cascading consequences of federal deregulation layered on top of threats to our state’s carbon plan law.
James Goodwin | April 10, 2025
During the night of April 9, President Donald Trump continued his administration’s radical assault on our nation’s critical system of regulatory safeguards with three new executive orders and a separate memorandum. These actions build on several previous ones that target regulatory safeguards, and they traffic in a lot of the same false rhetoric about the essential role our regulatory system plays in our society. But what makes these actions different is the manner in which they trample on administrative law and the procedural protections that it is meant to uphold.
Daniel Farber | April 9, 2025
On April 8, flanked by a few coal miners in hard hats, President Donald Trump signed four executive orders to restore their industry to its past glory. Given that coal is now the most expensive way to generate power other than nuclear, that’s going to be a heavy lift. Like many of Trump’s orders, these four are full of threats and bluster but will have little immediate effect.
Federico Holm | April 7, 2025
Since our last update (March 31), we have seen some movement regarding CRA resolutions. There have been no new resolutions signed into law (only two so far), but two more resolutions have cleared both chambers, so we can expect a signature from the president soon.
Federico Holm | April 1, 2025
On March 3, Randy Moore, the 20th chief of the U.S. Forest Service, stepped down after a lifelong career that started in 1981. A soil scientist and forester, Moore was also the first African American chief of the Forest Service. His resignation came on the heels of a widespread wave of mass firings of Forest Service personnel that amounted to approximately 10% of its workforce. In his farewell letter, Moore laid bare his frustration regarding the ongoing dismantling of the agency and the need for personnel to stick together and remain nimble, adding that for those in the Forest Service “feeling uncertainty, frustration, or loss, you are not alone.” Moore was replaced by Tom Schultz, a timber executive with deep ties to the logging industry. Schultz is also the first chief in Forest Service history who has not previously worked in the agency. In his introduction letter, Schultz highlighted his 25 years of land management, focusing on his timber and mineral extraction directive roles in Idaho.
Joseph Tomain, Sidney A. Shapiro | March 31, 2025
As the authors of a book that argues that a combination of government and markets has built a country truest to its fundamental political values, we see plans to radically downsize government as a contradiction of the historical evidence. As our book relates, the country has established a web of laws that interact with markets to build up our infrastructure, protect people, and help the most vulnerable among us.
Federico Holm | March 31, 2025
Since our last update (March 18), we have seen some small changes regarding CRA resolutions. There have been no new resolutions signed into law (only two so far), and there are now seven resolutions that have passed one chamber. This means that in addition to the six resolutions that had already cleared one chamber (you can see our previous update for a detailed description of those resolutions), there have been votes on four other resolutions.
Jamie Pleune, John Ruple, Justin Pidot | March 28, 2025
On February 25, the White House Council on Environmental Quality (CEQ) issued an interim final rule (IFR) rescinding the CEQ regulations implementing the National Environmental Policy Act (NEPA). On March 27, we submitted a comment, along with 25 other professors, identifying the severe challenges this rescission will create for critical infrastructure projects and other important federal activities.