On April 8, the White House issued an Executive Order aimed at "Protecting American Energy from State Overreach." While the direct effects from this Executive Order are hard to assess, the Trump Administration clearly intends to pursue action against or try to intimidate states that have passed energy and climate-related laws and regulations, such as carbon cap-and-trade laws, environmental justice laws, or laws aimed at reducing greenhouse gas emissions from the energy sector. This post summarizes the substance of the Executive Order, its likely beneficiaries, and the risk that the Executive Order poses to state-level climate leadership and emission allowance programs like the Regional Greenhouse Gas Initiative (RGGI).
What does the Executive Order do?
The rather brief Executive Order provides that its purpose is to advance the Trump Administration's energy agenda of increasing the development of domestic energy resources, described in the Executive Order as "unleashing American energy," to ensure that the "United States is energy dominant." The Executive Order directs the Attorney General of the United States to identify and stop the enforcement of any state and local laws, regulations, causes of action, policies, and practices that are or may be unconstitutional, preempted by Federal law, or otherwise unenforceable, and that burden the identification, development, siting, production, or use of domestic energy resources—particularly oil, natural gas, coal, hydropower, geothermal, biofuel, critical mineral, and nuclear energy resources.
The Executive Order also directs the Attorney General to prioritize the identification and elimination of any such state laws that purport to address a number of phrases which the Executive Order surrounds in quotation marks, including: climate change; environmental, social, and governance initiatives; environmental justice; carbon or greenhouse gas emissions; and carbon penalties or carbon taxes. The Executive Order cites examples of state laws and policies that allegedly weaken national security, undermine federalism, and drive up energy costs for Americans—New York's recently enacted climate change superfund law, a similar climate change superfund law in Vermont, and renewed efforts to enact similar legislation in California.
Lastly, the Executive Order directs the Attorney General to issue a report within 60 days addressing what actions the Attorney General has taken, or what Presidential or legislative action is needed, to stop the enforcement of such state laws and policies.
Who benefits from the Executive Order?
The likely intended beneficiaries of the Executive Order include producers of conventional energy sources and, with respect to aspects of the Executive Order addressing federalism, states or companies that seek to limit the regulatory reach of states implementing climate-related laws and policies. The Executive Order may also benefit efforts to extract critical minerals or bring more nuclear energy resources online in states that have attempted to slow or thwart such efforts.
While it is not clear whether the Attorney General can or will succeed in stopping the enforcement of state laws as directed by the Executive Order, the forthcoming Attorney General report will provide a roadmap for which state laws will become subject to heightened scrutiny by the White House.
What state carbon reduction programs are implicated by the EO?
The Executive Order expressly references California's Cap-and-Trade Program. That program is designed to reduce greenhouse gas emissions from major sources and create incentives for investments in clean energy. It is also linked with similar programs in Oregon and Washington, the latter of which survived a voter referendum in 2024. New York remains in the early stages of launching its own "Cap and Invest" program, first conceived by the State's Climate Action Council in 2023 and proposed by the state's Governor in 2024.
The Executive Order does not expressly reference the Regional Greenhouse Gas Initiative, but it too is presumably in the crosshairs of the Trump Administration. RGGI policies that have been adopted by the eleven RGGI member states since 2005 have reduced emissions from the energy sector, funded consumer benefit and energy efficiency programs, and accelerated the deployment of renewables. All of these elements of RGGI would presumably be at risk.
With the print on this Executive Order still drying, it is difficult to predict whether the Federal Government will be able to successfully assert claims against these state-led, market-based programs. The Trump Administration makes several conclusory legal statements in the Executive Order to suggest that states have acted beyond their constitutional authority when enacting these programs or otherwise regulating emissions. But the administration will still have to convince the same federal courts that previously affirmed states' authority to do so, even where a state seeks to enact more stringent emissions standards than those established under federal law. And even if the Executive Order doesn't produce a meaningful legal effect, soft impacts could still be realized; for example, states could needlessly feel intimidated and stall implementation of new programs, adoption of new rules, or other pro-climate actions.
We previously wrote about how President Trump's reelection will necessarily require state-level leadership on climate action, and it's clear that the Trump Administration issued this Executive Order in an effort to stall or quash those efforts. As we stated in that piece, despite looming uncertainty at the federal level and affordability and reliability on the minds of state regulators, pro-climate and clean energy states will find powerful allies among workers, investors, developers and advocates who are collectively generating billions in economic activity and thousands of good-paying jobs.
Foley Hoag continues to track state climate action–and federal efforts to quell it–across the nation. Watch this space for more.
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