Governors and state attorneys general are scrambling to prepare for President Donald Trump’s attack on their climate laws.
But one casualty already is coming into focus: the concept of “state’s rights.”
The belief is falling out of the pantheon of Republican Party orthodoxy, joining free trade and military intervention in the GOP dustbin as the party pursues Trump’s maximalist policy goals through unprecedented means.
In Congress and red-state capitals, Republican officials cheered Trump’s executive order this week directing the Justice Department to stop states from enforcing their own climate laws. The order targets a broad sweep of state policies, from environmental justice reviews to decade-old carbon markets. It also takes aim at states suing fossil fuel companies for damages related to climate impacts.
Trump is picking a fight over state climate policy at the same time he’s trying to increase federal control over elections — another domain of state and local control.
The twin efforts fly in the face of his attempts to boost state rights on other issues such as abortion, disaster aid, education standards, public lands and other targets of conservative ire.
The common thread, critics say, is a pursuit of Trump’s policies by any means — including contradictory ones.
The climate order “shows Trump’s utter hypocrisy on states’ rights,” said Jason Rylander, legal director of the Center for Biological Diversity’s Climate Law Institute.
“Trying to sic the Justice Department on state officials who are protecting their people from pollution will fail because the U.S. attorney general has no power to declare state laws illegal,” he said. “But Trump’s order will further damage the reputation of the department, which he’s weaponizing in a crude effort to curry favor with fossil fuel billionaires.”
The White House argued that state climate laws are undermining federalism by allowing a few states to influence the entire country. By imposing barriers to energy production, a White House official said, a few states have seized unconstitutional influence over U.S. trade and national security.
“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,” assistant press secretary Taylor Rogers said in a statement to POLITICO’s E&E News.
GOP lawmakers applaud executive order
Senate Republicans defended Trump’s effort to take down state climate laws, brushing aside questions about encroaching on states’ rights by invoking blue-state policies they said have negatively affected their states.
“It cuts just the opposite way,” said Republican Sen. Josh Hawley of Missouri, who served as the state’s attorney general. He argued that California, “in the name of climate change,” has tried to impose regulations on Missouri farmers.
And Hawley charged that Massachusetts had tried to impose air and water quality rules on the rest of the country.
“There’s only one body that has the authority to do that, and that’s Congress,” Hawley said.
Sen. John Hoeven (R-N.D.), a former governor, acknowledged a balancing act, saying that “Republicans have always been advocates and continue to be for states’ rights.”
Still, he added, “it’s a tough one because you want to protect states’ rights, but we also need interstate infrastructure.”
Hoeven argued that electricity prices are higher in New England because the states blocked the construction of interstate natural gas pipelines. “How do you do that and still respect states’ rights?” Hoeven said. “It’s a challenge, and this is not a new challenge.”
Hoeven noted that Attorney General Pam Bondi, whom Trump directed to investigate state climate laws, served as Florida’s attorney general and “is going to have a strong feeling about protecting states’ rights.”
But Sen. Sheldon Whitehouse, a Rhode Island Democrat, noted the order came just three weeks after Trump met at the White House with oil and gas industry executives who told him they were worried that blue states’ climate laws and lawsuits could threaten their businesses.
“Not only does this latest Big Oil fever dream violate state sovereignty, it tries to void decades of state-enacted policies that lower energy costs for families, protect clean air and water, reduce the carbon pollution responsible for climate change, and protect Americans from the price shocks of dependence on fossil fuels,” he said.
Indeed, on Wednesday, progressives flipped the political script — casting themselves as defenders of states’ rights against centralization.
“We have a divided government for a reason,” Gina McCarthy, the former White House climate adviser and EPA administrator, said in a statement. “We are not an autocracy and we will not allow this president to turn us into one. States and governors have rights.”
NY attorney general: ‘We’re not going to back down’
Trump’s assault on state climate laws comes just as he has renewed his vows to revive the embattled coal industry.
West Virginia Attorney General JB McCuskey (R) applauded Trump’s efforts in a letter Wednesday, along with Kentucky Attorney General Russell Coleman (R), saying the executive order targeting states’ climate laws “promises critical reinforcements in a key state-level fight.”
The two Republican attorneys general and 20 of their colleagues are suing New York over its law requiring energy companies to retroactively pay for the costs of climate change, and they couched their lawsuit in the letter to Trump as a way of “reminding our counterparts in other states that America’s federalist system can’t be manipulated to squash traditional American industry.”
They called laws like New York’s Climate Change Superfund Act “patently unlawful,” adding, “but it will take extensive time and effort to overturn them. We are ecstatic that federal reinforcements are now on the way.”
McCuskey’s Republican predecessor, Patrick Morrisey, was one of 19 red-state attorneys general who lost a bid in March before the Supreme Court to block climate lawsuits filed by five of their Democratic counterparts. Trump also targeted the lawsuits against the oil and gas industry in his executive order.
Democratic attorneys general — who have filed five lawsuits against the administration in just the past week — vowed to defend their states.
New York Attorney General Letitia James (D) pushed back at Trump on X, writing that the administration “cannot punish states for adopting laws that protect their residents.”
“New York’s clean energy laws ensure a stronger, greener, and healthier future for all New Yorkers, and we’re not going to back down,” James said.
And Connecticut Attorney General William Tong (D) charged that because Congress has failed to act on climate “like just about everything else right now, it has fallen on states to protect our families.”
“Donald Trump is happy to do Big Oil’s bidding, but I’m not about to let him stop the sovereign state of Connecticut from doing what is necessary to address this existential threat,” Tong said, adding that the Department of Justice should enforce environmental laws, “not waste time ‘investigating’ undeniably constitutional state laws.”
The Department of Justice declined Wednesday to provide any further details about the review.
The department’s ability to carry out Trump’s edict may be minimal, Dan Farber, faculty director of the Center for Law, Energy and the Environment at the University of California, Berkeley, wrote in a blog post.
Nearly 200 lawsuits have been filed against the administration and, “given that the Civil Division is stretched very thin defending Trump’s many encroachments on the rule of law, there would seem to be limited resources for filing scattershot lawsuits against states,” Farber said.
DOJ attorney Josh Gardner said during a March hearing that the department’s Federal Programs Branch — which represents the executive branch in civil litigation — had been “cut in half” since November.
The administration also is proposing a reorganization of the Justice Department that former attorneys with the department said would leave its Environment and Natural Resources Division “hollowed out.” The changes could include consolidating the division’s Law and Policy Section with other divisions. The office is responsible for coordination across ENRD, legislation review and ethics advising.
Trump suggested Tuesday that the administration could use some of the law firms that have signed settlement agreements with the White House to assist with his efforts to boost coal production. Trump has issued executive orders targeting large law firms, and several have signed deals with him, promising to devote $40 million worth of free legal work to projects he supports.
“We’re going to use some of those firms to work with you,” Trump told the coal miners who joined him at the White House.
The action is at least the second time in three weeks that Trump has sought to curb states’ authority. A March 25 executive order looks to change how elections are conducted across the country and threatens that if states do not comply they could lose federal funding.
Nineteen Democratic-led states filed suit last week over the executive order, arguing that states have the primary responsibility to conduct elections and that Trump’s effort “usurps the States’ constitutional powers.”
