The Trump administration is dusting off one of the original arguments against state climate action.
In lawsuits this month, the Justice Department said that a pair of Vermont and New York policies that would retroactively charge fossil fuel companies for climate damage — known as climate superfund laws — should be struck down because they interfere with President Donald Trump’s authority to conduct foreign policy.
Justice Department lawyers made the same arguments in lawsuits to prevent Hawaii and Michigan from suing fossil fuel companies, claiming the states “could undermine the ability of the United States to speak with one voice on a matter of pressing interest around the globe.”
Those arguments hearken back to claims that courts heard — and rejected — under past Republican administrations, legal experts said.
So while the courts might entertain some of the administration’s narrower claims, such as arguments about Clean Air Act preemption, experts said it’s unlikely that judges will bow to Trump’s expansive arguments that state climate policy is inherently unconstitutional.
Pat Parenteau, law professor emeritus and senior fellow for climate policy at the Vermont Law and Graduate School, said the Justice Department seemed to be throwing out any arguments its lawyers could imagine against state climate policy.
“It’s not just the kitchen sink; it’s the toilet seat,” he said.
Claims of sweeping foreign policy powers have become a trademark courtroom argument for the Trump administration.
The feds have justified Trump’s deportation campaign by invoking the wartime Alien Enemies Act, which the Trump administration argued could not be reviewed by judges, as well as a 1952 law under which Secretary of State Marco Rubio deemed the presence of some immigrants “have potentially serious adverse foreign policy consequences.” The Trump administration also made claims of unilateral foreign policy power when challenged in court over cuts to USAID’s congressional appropriations.
For climate lawsuits, the argument that the issue belongs in the foreign policy realm is decades old.
The Supreme Court considered deference to foreign policy in Massachusetts v. EPA, the landmark 2007 case in which the court ruled that carbon dioxide must be federally regulated as a pollutant.
“The George W. Bush administration raised the same argument,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.
“The Supreme Court rejected it. They said that regulation of vehicle emissions was too remote from anything that would interfere with the president’s foreign affairs power. And I think the same thing would apply here,” he said.
“All that Vermont and New York are trying to do is assess fossil fuel companies for past contributions to greenhouse gases,” Gerrard added. “And so that, too, is quite remote from anything that could interfere with the foreign affairs power.”
The Trump administration itself also raised foreign affairs arguments during the president’s first term. In 2019, the administration challenged California’s cap-and-trade system, which is linked to Quebec’s. Trump officials argued that by entering into an agreement with a foreign government, California’s climate regulations amounted to an “independent foreign policy.”
But a federal judge rejected that argument in 2020. California’s system did not rise to the level of a treaty or a compact, the court found, nor did it constrain the president’s powers.
“While the President indisputably has ‘a unique role in communicating with foreign governments,’ the United States has failed to demonstrate that the power to do so has been substantially circumscribed or compromised by California’s cap-and-trade program,” wrote U.S. District Judge William Shubb, an appointee of President George H.W. Bush.
The Trump administration isn’t alone in pressing its case. Two-dozen Republican attorneys general have sued to stop Vermont and New York’s climate superfund laws, and they made similar claims that the Democrat-governed states are horning in on the territory of the White House and the State Department.
“While the Federal Government attempts to negotiate multilateral emissions treaties with nations like China and India, Vermont is attempting to enter the picture by regulating emissions in those countries,” the Republican officials wrote in one of their suits.
The Justice Department declined to comment. Top officials in the past have blended their foreign affairs arguments with those around national security.
“When states seek to regulate energy beyond their constitutional or statutory authority, they harm the country’s ability to produce energy and they aid our adversaries,” Adam Gustafson, the acting attorney general for DOJ’s Environment and Natural Resources Division, said in a statement when the lawsuits were filed.
Parenteau said those arguments fundamentally mischaracterize states’ climate superfund laws, which seek to charge energy companies billions of dollars in proportion to their historical emissions. Vermont and New York intend to use the money to harden their infrastructure against climate-fueled floods and other impacts.
A climate superfund law is “not climate policy. It’s cost recovery,” Parenteau said.
That raises its own set of questions that eventually could be tried in court, once the states try to collect money from fossil fuel companies. But because it’s not regulating emissions, he said, the climate arguments amount to a straw man.
Beyond that, he said, the Trump administration’s foreign policy argument is absurd.
“What foreign policy are you talking about? Seriously, what are you talking about?” Parenteau said, noting the Trump administration had pulled out of the Paris climate agreement.
Taken together with the Trump administration’s other invocations of executive power, Parenteau said the president’s challenge to state climate policy seems like “an assertion of authority.”
“You’re certainly not involved in climate negotiations, you’re out of that. If you even show up at [U.N. climate negotiations] you’ll be there as an observer; you won’t have any official role at all,” he said. “Are you secretly negotiating with China on a climate treaty?”
