Legal pitfalls could trouble Trump’s executive actions

By Pamela King, Niina H. Farah, Lesley Clark | 01/21/2025 01:59 PM EST

The courts will ultimately have their say on the new administration’s “energy emergency” and planned environmental rollbacks.

A person holds a gavel.

President Donald Trump's energy and climate ambitions will eventually be subject to legal scrutiny. Mark J. Terrill/AP

President Donald Trump on his first day in office declared an “energy emergency” and set in motion the demolition of scores of environmental protections that his administration will have to defend in court.

Legal observers say some of Trump’s ambitions will be harder than others to justify — even before a high court dominated by conservatives, including three of the president’s own picks.

“Yes, it’s a Trump Supreme Court,” said Pat Parenteau, emeritus professor at the Vermont Law and Graduate School, “but I’m not ready to say there are five votes to rubber-stamp whatever he wants.”

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Few executive orders have immediate effect, said Dan Farber, faculty director at the Center for Law, Energy and the Environment at the University of California, Berkeley. For many of the climate and energy actions Trump declared Monday, his administration will need to craft rules to carry out those goals — and those regulations from agencies like EPA and the Department of the Interior will then be subject to scrutiny by the courts.

“They’re basically nudges to various agencies to carry out his agenda,” Farber wrote in a Monday blog post. “Presidents love issuing executive orders. It’s easy to do, and many people will credit the president with major accomplishments. But really, as someone recently said, an executive order is ‘just a memo on fancy letterhead.’”

Trump’s declaration that there is an energy emergency doesn’t automatically allow him to achieve his objectives, said Brett Hartl, government affairs director at the Center for Biological Diversity.

The president will also need to stay cognizant of how recent Supreme Court rulings limiting the power of the executive branch — such as Loper Bright v. Raimondo, which overturned the Chevron doctrine — will constrain his ability to accomplish all the goals he has laid out for his new administration, Hartl added.

“Saying, ‘But there’s an energy emergency,’ doesn’t really give any weight to anything. This is the great irony of Loper Bright,” he said. “In a world of Chevron, that might have stuck more, but now, in a world of Loper Bright, it doesn’t matter at all, because the only thing that matters is the best interpretation of the statute, not any one president’s whim.”

The absence of Chevron, which gave federal agencies a leg up in defending their rules in court, may limit some of Trump’s ambitions, but that depends on whether judges think the new president’s efforts to reverse the Biden administration represent the best readings of federal law, said Jeff Holmstead, a partner at the law and lobbying firm Bracewell.

“A number of their regulations will not be hard to change because the Biden administration was far out on the limb on things,” Holmstead said. “The Trump administration will need to go through notice-and-comment rulemaking to reverse those, but I don’t think that will be that hard to do.”

Democratic attorneys general also signaled that they plan to lead efforts to challenge Trump, as their Republican counterparts did during the Biden administration.

“When Trump 1.0 tried to roll back federal climate and clean air regulations, we sued and we won. That firewall never came down,” Connecticut Attorney General William Tong (D) said before Trump’s inauguration. “Attorneys general across the country are on our feet today, and we have never been more coordinated, determined and ready for this fight.”

Here are some of Trump’s targets that could face trouble in the courts:

Pumping up fossil fuel permitting

Trump followed through on his campaign promise to ease the approval process for fossil fuel projects and spur energy development on public lands and in federal waters.

The executive order calls for federal agencies to facilitate approvals for the construction of energy across state lines, including via pipeline, for areas of the country that have lacked new energy infrastructure development.

For public lands, the most immediate impact of the executive order would likely relate to the 2024 public lands rule, which prioritized public lands conservation, said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center.

The Trump administration is likely to try to stay that litigation to give Interior time to draft a rollback rulemaking, which is likely to face a federal court challenge, he said.

The fight over the public lands rule “will serve as context for what I expect will prove, in the near term, more intensive: Fights over specific fossil fuel plans, leases and permits. Trump’s executive order will throw fuel on the fire of public lands litigation,” Schlenker-Goodrich said.

The executive order also called for streamlining judicial review of National Environmental Policy Act analyses of federal projects.

The directive builds on efforts by Congress to speed up the timeline for environmental analyses of major projects. But federal agencies will still have to comply with the language of the statute, which requires agencies to take a “hard look” at environmental risks, as well as decades of case law establishing the level of review needed for analyses to hold up in court.

The American Petroleum Institute, which represents the oil and gas industry, welcomed Trump’s moves as a way to boost energy production.

API President and CEO Mike Sommers noted that several initiatives, including streamlining permitting processes, “will help deliver a stronger, more prosperous energy future for all Americans.”

West Virginia’s Republican Gov. Patrick Morrisey said the president’s orders would help to boost the state’s energy economy.

“As America’s energy state, our nation’s energy independence begins right here in West Virginia,” said Morrisey in a statement Tuesday. “To lead the way, we will partner with President Trump, unleash our full potential, and ultimately become energy dominant.”

Ending the endangerment finding

Trump’s goal to rethink the endangerment finding — EPA’s determination that greenhouse gases threaten public health and welfare — may encounter trouble, even before the matter gets to the courts.

“My experience with the career folks at EPA is they do their best to implement the decisions made by the political leadership, and there are people who have served equally well in Republican and Democratic administrations,” said Holmstead of Bracewell, who was EPA air chief under former President George W. Bush.

“But I think on the endangerment finding,” he said, “they would have a very hard time getting EPA to write a document saying greenhouse gases don’t endanger public health.”

Forcing the issue with agency staff would likely completely destroy Trump’s ability to get anything else done at EPA over the next four years, Holmstead said.

And then, he said, the move would be unlikely to find favor in the courts.

“Even with the Supreme Court,” Holmstead said, “I think we’ve had a majority of the justices who’ve expressed concern about climate change — even if they think the administration has overstepped their bounds.”

Eradicating the social cost of carbon

The Trump administration may have an easier time defending the president’s goal of ending use of the social cost of carbon, Holmstead said.

Through an executive order, former President Joe Biden had set up a working group to set a new social cost metric, which assigns a dollar amount to the burden society bears from emissions of greenhouse gases and helps agencies financially justify stronger climate regulations. That’s purely an internal thing that can be changed easily, Holmstead said.

Legal efforts targeting the Biden administration’s work to bring the social cost of carbon back up from the level of $1 per metric ton that had been set during Trump’s first term were largely unsuccessful.

Trump is likely to enjoy similar protection for his efforts to reset the number. EPA under Biden had written at least one rule that relies on its own social cost of carbon, and to change that, all the agency would need to do is complete a new rulemaking process, Holmstead said.

“I think that’s something that would and should stand up in court,” he said.

Eliminating the ‘EV mandate’

Trump also pledged to eliminate the “electric vehicle (EV) mandate” and end state emissions waivers — a reference to California’s Clean Air Act waiver that allows the state to pursue stricter vehicle pollution limits than the federal government.

The Natural Resources Defense Council, however, noted there is no mandate and that the administration would need to follow the law if it sought to repeal the Biden administration’s EV incentive, federal vehicle standards or state waivers.

“Our lawyers are watching,” said Kathy Harris, the NRDC’s director for clean vehicles. “If the administration tries to cut corners or ignore the law, they will end up in court.”

The CBD called Trump’s bid to repeal California’s waiver “likely illegal.” It noted that a federal appeals court in 2024 rejected an effort by Republican-led states and fossil fuel trade groups seeking to unravel California’s authority, finding that the state faces “significant pollution and climate challenges.”

Blocking IRA spending

Trump’s vision to suspend congressionally designated funds for new infrastructure and clean energy projects may be his toughest lift in court.

Unlike other Trump orders, halting funding under the Inflation Reduction Act and other federal laws impedes not on the power of executive agencies — which has recently faced criticism from the Supreme Court’s conservative majority — but on the authority of Congress.

Scott Segal, a partner at Bracewell, said the move could violate the Impoundment Control Act, which says the executive branch is barred from unilaterally withholding funds for policy reasons, and could constitute a breach of federal contract, exposing the government to litigation and liability to funding recipients.

“If challenged, this section of the executive order might be subject to scrutiny by Congress, the [Government Accountability Office] or federal courts, as it could be seen as encroaching on Congress’ power of the purse and may undermine federal obligations,” Segal said.

He added: “Only time will tell what priority the administration will place on the pause.”

Reporter Robin Bravender contributed.