Trump just started a war on state climate laws. Does he have the weapons?

Even if he doesn’t, the litigation could prove costly and delay state climate action.

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President Donald Trump this week fired a first volley in what is likely to become a costly legal fight with states over their climate actions, but experts aren’t sure how much ammo the federal government really has.

In an executive order, Trump instructed Attorney General Pam Bondi to take a look at ways to block “burdensome and ideologically motivated” state climate lawsuits, laws and energy permitting restrictions that make it more difficult to drill things like oil and gas wells.

The order is Trump’s latest effort to expand energy production in the country, at the expense of climate action. But legal experts told Landmark that they’re skeptical the U.S. Department of Justice will find many tools at its disposal in this new effort to essentially steer Democrat-run state climate policy, even if the effort could do damage.

“There is a lot of sound and fury signifying nothing,” Jason Rylander, an attorney at the Center for Biological Diversity, told Landmark. “But, at the same time, in the context of everything else this administration is doing to unravel environmental regulation and to strip agencies of their enforcement authority, they are going to have an impact.”

“And to the extent this is weaponizing the Department of Justice to do things that have been heretofore unprecedented, everybody should be concerned about that,” he said.

State climate laws

In the absence of more robust federal action, states — primarily those led by Democrats — have often stepped in to fill the void as best they can.

In New York and Vermont, the state governments have passed laws fashioned after the federal Superfund Law that will force major oil and gas manufacturers to pay billions of dollars based on their relative greenhouse gas contributions.

That money is expected to be used to harden communities against things like sea level rise in Long Island, home to 8 million people.

In California, which is currently considering its own climate Superfund law, the president’s executive order specifically calls out the state’s cap-and-trade program. That program, introduced in 2012, created a declining cap on emissions in the state and allows companies like electric utilities and factories to “trade” emissions to account for the fact that some industries may be harder to decarbonize than others.

Alicyn Craig, a partner at the law firm Duane Morris, told Landmark that, historically, the “advantage has gone to the states” in litigation where the federal government has challenged state laws.

While there are examples of the feds prevailing — for instance in cases challenging state immigration and voting rights laws — Craig noted that the U.S. Supreme Court recently said in its 2023 decision National Pork Producers Council v. Ross that the states are free to enact laws that have the “practical effect of controlling extraterritorial behavior” using environmental laws.

Even so, Craig said the government’s involvement could cause headaches for the states and temporarily dissuade copycat laws.

The “intent of this executive order is likely to benefit the fossil fuel industry by thwarting the enactment of climate change statutes in environmentally friendly states until decisions are made on the recently promulgated climate change statutes of Vermont and New York,” Craig said.

Climate nuisance lawsuits

The executive order also takes aim at the dozens of lawsuits that have been filed in recent years against major oil and gas companies like Exxon and Sunoco seeking billions in damages.

Generally speaking, the lawsuits raise public nuisance and false advertising claims against the companies and claim they knew their products contributed to climate change for decades, but knowingly misled the public about that threat anyway.

Trump suggested that these lawsuits infringe on the federal government’s role in regulating cross-border emissions and may be preempted by federal laws like the Clean Air Act.

That’s basically the same argument the oil and gas defendants have made for years. But repeated attempts to remove the lawsuits from state to federal courts have failed, and the Supreme Court has declined to consider the matter.

So, what can the Trump administration do? The most likely role would be to try to weigh in on the cases in amicus briefs, which are advisory “friend of the court” filings in which non-parties to a lawsuit express their point of view on the questions before the court.

(The Biden administration in December encouraged the Supreme Court to reject an appeal filed by oil companies that said claims in one of the cases are preempted. The Supreme Court did reject that case in January, and recently rejected another attempt by Republican states to kill cases filed by California and other Democrat-led states as well).

The administration may also be able to ask to intervene in the lawsuits — which would essentially make them party to the cases — but it’s unclear if they could do so since many of the cases are quite far along.

Patrick Parenteau, a professor emeritus at Vermont Law School, told Landmark most possible legal arguments are already being raised in pending litigation, and efforts by the DOJ to intervene in the cases are unlikely to succeed because “they’ve been pending for many years and intervention would not be timely.”

“It's more likely that DOJ will file amicus briefs arguing the constitutional issues and invoking Trump's ‘emergency meme,’” he said, referring to Trump’s declaration of a national energy emergency. “Or it could bring an original action challenging the climate superfund laws.”

An attack on state sovereignty

The Trump administration may find more creative ways to try to push their preferred policies at the state level and has already threatened to withhold federal funds to states like California to get their way.

The executive order also instructs the DOJ to consider asking Congress to step in, which could suggest that the president favors a liability shield for fossil fuel companies akin to the shield that protects gun manufacturers from lawsuits by gun violence victims. It’s not immediately clear to what degree a presidential executive order would directly influence the deliberations of Congress, however.

Legal experts said that the newfound focus on these state policies is also a major test for state sovereignty, a traditionally important Republican principle.

For instance, the executive order claims that “some states delay review of permit applications to produce energy, creating de facto barriers to entry in the energy market.” Undermining that could curtail a state’s abilities to make land use and other policy decisions within their borders.

But states like California, a leader on climate change issues, said in a statement that they won’t be backing down soon.

“The Trump administration continues to attempt to gut federal environmental protections and put the country at risk of falling further behind in our fight against climate change and environmental harm,” a California Department of Justice spokesperson said. “The California Department of Justice remains committed to using the full force of law and tools of this office to address the climate crisis head-on and protect public health and welfare.”