Executive Order Directs Investigation into Constitutionality of State Climate Regulations, Raising Concerns of Legal Battles and Policy Uncertainty

WASHINGTON D.C. - President Donald Trump has ignited controversy by issuing an executive order directly targeting state and local government climate change laws and policies, including California's landmark carbon cap-and-trade program.

The President directed Attorney General Pam Bondi to identify any provisions within state and local laws that potentially conflict with federal law or raise constitutional concerns. The Attorney General is required to report her findings and recommendations for necessary actions to the President within 60 days.

Notably, the executive order specifically singles out California's carbon cap-and-trade system, implemented in 2012. This market-based system sets a limit on greenhouse gas emissions and allows companies to trade emission allowances, making it a cornerstone of California's climate change response. Currently, twelve other states operate similar greenhouse gas reduction programs.

President Trump's executive order asserts that "California, for example, punishes carbon usage by imposing impossible caps on the amount of carbon that companies can use, which is no different than forcing those companies to pay exorbitant amounts and 'trade' carbon credits in order to satisfy California’s radical demands."

The executive action comes as the Trump administration rolls back efforts to promote wind and solar energy development while pushing to increase domestic oil and gas production.

President Trump argued that states have created "illegal impediments" to domestic energy production of oil, natural gas, nuclear, and other energy sources. Significantly, the term "climate change" was intentionally placed in quotation marks within the executive order, seemingly downplaying its significance.

Some legal experts argue that the executive order is an overreach of presidential authority, challenging President Trump's assertions that states are overstepping their bounds or that their climate change programs are unconstitutional.

"The implication that the Attorney General can simply declare a state law unconstitutional and therefore no longer valid is the most problematic aspect of this executive order," said Margaret A. Coulter, senior climate change counsel at the Center for Biological Diversity. "It’s a form of intimidation."

Amy Turner, director of the Cities Climate Law Initiative at the Sabin Center for Climate Change Law at Columbia Law School, 1  pointed out that the Tenth Amendment grants states the power to set their own regulations in areas where the federal government has not acted. "In other words, the federal government can’t just take that power away because it wants to, and to do so would create a clear constitutional crisis," she warned.

However, experts fear the executive order could have a chilling effect on state-level action. Turner analyzed that while President Trump’s order "does not directly challenge, enjoin, preempt, or stay any state or local law, it is highly likely to be a precursor to litigation, legislation, or withholding of federal funding." This, she added, "is likely to have a significant chilling effect on local climate policy innovation."

California Attorney General Rob Bonta did not immediately respond to a request for comment on the Trump administration's executive order.

The Trump administration has previously sued California over its cap-and-trade program, arguing that its linkage with a similar program in Canada amounted to the state entering into an international treaty. However, a court rejected the administration's argument, stating that it failed to provide evidence that the cap-and-trade program impaired the federal government's ability to conduct foreign policy.

President Trump contends that state climate policies and laws are "unjustly discriminatory" against fossil fuel companies and "increase energy costs for American families by imposing arbitrary and excessive penalties without legitimate justification."

"These state laws and policies fundamentally conflict with my Administration’s goal of promoting American energy independence and are unacceptable," he asserted.

President Trump also specifically criticized laws enacted in New York and Vermont that created climate funds requiring fossil fuel companies to contribute to climate change adaptation efforts. The goal of these funds is to offset the increasing costs associated with extreme weather events.

Furthermore, the executive order takes aim at civil lawsuits filed against fossil fuel companies. California is leading a charge demanding billions of dollars in damages from major fossil fuel companies for allegedly misleading the public about the dangers of climate change for decades.

President Trump characterized these programs as an effort to "extort" money from oil companies.

The oil industry has been lobbying the Trump administration to take a more aggressive legal stance against these state-level efforts to hold them accountable for climate change. Industry groups have reportedly urged the Justice Department to support their lawsuits or launch its own federal legal challenges against states like New York and Vermont, according to the Wall Street Journal.

California is considering similar legislation. A bill introduced by Democratic State Senator Caroline Menjivar of Van Nuys would require companies to pay damages for greenhouse gas emissions dating back to 1990 that have caused harm in California.

The American Petroleum Institute (API) applauded the executive order, stating that it "rightly calls out unconstitutional efforts by states like New York and California to unlawfully penalize American oil and natural gas producers who provide the energy that American consumers rely on every day."

President Trump's executive order is expected to create significant uncertainty for state climate change efforts and deepen the legal battles between the federal government and states. Its direct targeting of California's pioneering climate policies suggests a potentially far-reaching impact.