Trump May Have Inadvertently Invited a Wave of Climate Action From Blue States

The Trump administration’s decision to roll back the “endangerment finding” for greenhouse gas emissions may have had an unintended consequence: It undercut the administration’s legal argument against blue state climate regulations, environmental lawyers say.

In February, the Environmental Protection Agency moved to rescind an Obama-era finding that greenhouse gas emissions threaten public health and cause climate change, essentially unravelling the legal basis for federal emissions regulations. The move was cheered by anti-environmentalist conservatives and industry leaders alike as the end of burdensome regulation.

But the endangerment finding played a central role in the Trump administration’s legal arguments against state-level climate policy, according to environmental lawyers.

“One of the arguments they make is that those laws are preempted by federal regulation, and if there is no federal regulation, that argument suffers,” Michael Wall, the chief litigation officer at the Natural Resources Defense Council, said of blue states’ efforts to enact state-level environmental statutes.

Vermont and New York are likely to be the early test cases in court, as they fight to keep their states’ approaches to emissions. If they win, they could offer a model for other states looking to fill the endangerment finding gap.

Both states recently passed climate superfund laws that require companies that significantly contribute to greenhouse gas emissions to foot part of the cost of state measures to adapt to climate change. The Trump administration sued both states, claiming the state-level climate policies unlawfully usurp the federal government’s power.

Those lawsuits were spurred by President Donald Trump’s executive order last year for the Justice Department to “take appropriate action” to stop “burdensome and ideologically motivated” state-level climate and energy policies.

Multiple environmental groups that sided with Vermont in the EPA’s case against the state’s superfund law said in a court filing in February that the EPA’s “inconsistent statements … undermine its arguments in this case.”

The EPA referred NOTUS to the Justice Department when reached for comment. The Justice Department did not respond to a request for comment.

Other states, including Illinois, Oregon, Virginia and Tennessee, have attempted to pass similar legislation with varying success. Bills have often failed or stalled in state legislatures.

But the repeal of the endangerment finding is poised to spur more action from blue states around climate policy.

“The endangerment finding repeal has not changed any ability for states to act, and so all it has done is made it even more important for states to do things on climate,” said Jon Binder, the executive director of the Model Climate Laws Initiative at Columbia Law’s Sabin Center for Climate Change Law. “In my mind … it’s all types of climate related laws that states will hopefully have a greater push to do in light of the engagement finding repeal.”

Binder said the EPA’s move could renew the push for state superfund bills — and other climate legislation, including setting emissions targets and joining cap-and-trade efforts — across the country. Several Democratic attorneys general have signaled that they’ll take state action in response to the rollback.

The agency’s decision could also create an opening to reinstitute rules that the Trump administration itself railed against and recently dismantled. The president said in a statement last year that “it is the Federal Government, not States, that should establish vehicle emissions standards given the inherently interstate nature of air quality” and that “a patchwork of State vehicle regulations on this subject is unworkable.”

However, the EPA’s decision could re-invite a patchwork of statutes.

Congress passed a series of resolutions last year striking down a Clean Air Act measure that allowed California an exception to national pollution standards, including by requiring a full transition to electric vehicles by 2035. The end of the exception posed a roadblock for state climate regulation not just in California, but for other states that could set similar strict standards as long as California had an EPA waiver to do so.

Trump said the California waiver gave the state too much power to regulate a national issue. Now, it’s likely California will seek to act on that waiver again as the federal government loosens its grip on any tailpipe emissions regulations.

“States gave up their right to regulate vehicle emissions (except for California) while the industry agreed to EPA regulation,” Daniel Farber — the faculty director at the University of California, Berkeley’s environment and energy law center — wrote in a blog post last week. “That bargain breaks down if there are substances that EPA can’t regulate because states would be getting nothing back in return for giving up their own regulatory powers.”

A new wave of state action is likely to stir frustration among industry players.

Varying environmental laws across different jurisdictions mean that enforcement of environmental regulations is often loose. It also means navigating a mixture of laws that may be lax in some parts of the country but stricter in others, multiple legal experts told NOTUS.

“It’s really a tale of two countries,” said Sam Sankar, the senior vice president of programs at environmental nonprofit Earthjustice. “There are blue states attempting to make forward progress on clean energy and climate and environmental justice, and there are red states trying to go exactly in the opposite direction.”

In addition to setting a single standard for emissions regulations, the endangerment finding offered a “shield” to these industry players because it protected them from certain lawsuits, one legal expert at the firm Adams & Reese wrote after its repeal. In the absence of a national regulation on greenhouse gas emissions, companies could get hit with more public nuisance lawsuits, which many courts previously threw out because the EPA’s role in regulation preempted state complaints against industry players.

The phenomenon is already unfolding at the highest level — the Supreme Court said it will hear a case where the city of Boulder, Colorado, sued oil and gas companies, alleging that the companies have furthered climate change.

The justices will specifically consider whether federal emissions laws preempt the city from bringing the case, a question that could give a boost to jurisdictions looking to file similar anti-industry lawsuits in the aftermath of the endangerment finding.

Companies are also considering what comes next. A slate of industry executives praised the end of tailpipe emissions limits. But at least one leader, American Petroleum Institute CEO Mike Sommers, told reporters he is wary of how the EPA could extend the rollback — like ending its regulation of stationary pollution sources such as power plants — and further complicate the legal landscape for companies.