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.