President Trump is exerting more executive authority in the early days of his second term than he did his first. A central mission of this executive authority has been undoing the Biden Administration’s climate agenda. On his first day in office, President Trump pulled the United States out of the Paris Climate Agreement again.^[1] Democrats, locked out of power in Washington, seek to find ways to stymie the rollback of climate progress. Efforts to stop the rollback are in the hands of the states, who have both recommitted themselves to moves they made during the first Trump administration, while also pushing back in new ways against the President’s deregulatory agenda.

Familiar efforts to continue emissions reduction

The Governors of Washington, New York, and California established the United States Climate Alliance in 2017, aimed at “coven[ing] U.S. states committed to upholding the Paris Climate Agreement and taking aggressive action on climate change.”^[2] Currently 24 governors form the coalition, accounting for 54% of the U.S. population and 57% of the U.S. economy.^[3]

During the first Trump term, states cut emissions on their own. Before the pandemic upended the global economy, the Alliance reported that member states were on pace to reduce greenhouse gas (“GHG”) emissions by up to 32% below 2005 levels by 2030.^[4] While laudable, these local efforts were considered to be inadequate to combat global climate change, with one expert stating, “While subnational governmental action is essential . . . state and local action alone cannot secure sufficient emission reductions.”^[5]

On the first day of the second Trump administration, the Climate Alliance wrote to the United Nations stating their intention to continue climate commitments.^[6] This second pledge will likely have a substantially similar impact to the first: essential state action, in the absence of federal participation, may prove insufficient to meet the drastic emissions reduction goals.

Pushing back on structural deregulation

The more impactful and novel technique President Trump took during his first term was large-scale “structural deregulation.” In addition to passing some affirmative regulations to his liking, the first Trump Administration led the “most extreme structural deregulation in recent history.”^[7]

Distinguished from substantive deregulation, structural deregulation (coined by Professors Freeman and Jacobs) focuses on hamstringing the capacity of a regulatory organization.^[8] Structural deregulation is killing an agency by a thousand cuts,^[9] whether that is through impounding their funds or intentional understaffing.^[10] These methods are effective because, in theory, they are largely outside of any kind of congressional or judicial oversight.^[11]

The work being done by the so-called “Department of Government Efficiency” (DOGE) and Elon Musk has not only picked up where the first administration left off but has supercharged it.^[12] The new Trump Administration has started a “campaign of structural deregulation more sweeping in scale and scope . . . far beyond what the President tried to do in his first term.”^[13] One such action was Office of Management and Budget Memorandum M-25-13, which halted all agency payment programs.^[14]

The Executive may redirect how funds are spent (for instance, Transportation Secretary Sean Duffy issued an order directing Office of the Secretary of Transportation (OST) grantmaking to give preference to “communities with marriage and birth rates higher than the national average”^[15]), but the wholesale abridgement of federal funds is certainly uncharted territory. The President halted the disbursement of money set aside for climate change that had been promised to the states, including “funds appropriated through the Inflation Reduction Act . . . or the Infrastructure Investment and Jobs Act.”^[16]

This is an unprecedented abridgement of Congress’s power, as the Executive is impounding duly approved funds. But the Republican-controlled Congress seems utterly unperturbed to lose the power of the purse.

Instead, states seem to be stepping up to fight on Congress’s behalf.

Blue state Attorneys General quickly filed suit against the administration in State of New York v. Trump, arguing that, among other things, these orders violate the Administrative Procedures Act, as being “contrary to constitutional right, power, privilege or immunity.”^[17]

It is the states and not Congress that are trying to enforce Congress’s rights under the separation of powers, as Count III of the initial complaint alleges that the Trump administration has violated “the separation of powers because the executive branch has overridden the careful judgments of Congress by refusing to disburse funding for innumerable federal grant programs . . . .”^[18]

The Plaintiff States also point out that, even without violating separation of powers, the Trump administration may run afoul of the Tenth Amendment by lowering funding levels so sharply that it creates a “certain level of coercion [that would] encroach on state sovereignty.”^[19]

A federal judge in Rhode Island granted the temporary restraining order^[20] and has since written that the order has not been followed.^[21] This brings us to the final potential front in this fight.

Uncharted territory

Vice President JD Vance recently offered that the Executive cannot be checked by the Judiciary when it comes to executive power,^[22] and DOGE chief Elon Musk has suggested that they would ignore any court order instructing them to reinstate the disbursement of funds.^[23] Exemplifying this belief, it is unclear whether the Trump Administration is yet to comply with the Rhode Island judge’s order.^[24] This case may make its way to the Supreme Court, where it will remain to be seen whether or not the Judiciary is equally as happy to cede power to the Executive as the Legislature is. Further, it is not clear if the President would listen to an order from the highest court (echoing “‘The Chief Justice has made his decision, now let him enforce it’”^[25]). Almost inevitably, this would lead to a full-blown constitutional crisis were it to occur.

By joining the Climate Alliance, states have made it clear that they intend to uphold their environmental commitments. By filing suit in State of New York v. Trump, they have also indicated that they intend to uphold the fundamental contract of the Constitution’s separation of powers. Soon, they may be forced to defend the legitimacy of courts as well. However, what legal avenues they may explore are unclear.

 

 

^[1] Exec. Order No. 14,162, 90 Fed. Reg. 8455 (Jan. 20, 2025).

^[2] Press Release, United States Climate Alliance, CA Governor Brown, NY Governor Cuomo and WA Governor Inslee Announce Formation of U.S. Climate Alliance (June 1, 2017).

^[3] States United for Climate Action, U.S. Climate Alliance, https://usclimatealliance.org/ (last visited Feb. 14, 2025).

^[4] 2019 Annual Report, U.S. Climate Alliance, 5 (Dec. 9, 2019), https://usclimatealliance.org/wp-content/uploads/2023/04/USClimateAlliance_AnnualReport_2019.pdf.

^[5] Vicki Arroyo, From Paris to Pittsburg: U.S. State and Local Leadership in the Era of Trump, 31 Geo. Envtl. L. Rev. 433, 454 (2019).

^[6] Letter from U.S. Climate Alliance Co-Chairs to Simon Stiell, United Nations Framework Convention on Climate Change Exec. Sec’y (Jan. 20, 2025), https://usclimatealliance.org/wp-content/uploads/2025/01/FORMATTED_USCA-Co-Chair-Letter-to-UNFCCC-250112.pdf.

^[7] Jody Freeman & Sharon Jacobs, Structural Deregulation, 135 Harv. L. Rev 585, 588 (2021).

^[8] Id.

^[9] Id. at 589.

^[10] Id.

^[11] Id. at 635.

^[12] Jody Freeman & Sharon Jacobs, President Trump’s Campaign of ‘Structural Deregulation’, Lawfare Blog (Feb. 12, 2025, 10:40 AM), https://www.lawfaremedia.org/article/president-trump-s-campaign-of–structural-deregulation.

^[13] Id.

^[14] Memorandum from Off. of Mgmt. & Budget Acting Director Matthew Vaeth to Heads of Executive Departments and Agencies (Jan. 27, 2025), https://s3.documentcloud.org/documents/25506186/m-25-13-temporary-pause-to-review-agency-grant-loan-and-other-financial-assistance-programs.pdf.

^[15] U.S. Dep’t of Transp., Order from the Secretary of Transportation (Undated), https://www.transportation.gov/sites/dot.gov/files/2025-01/Signed%20DOT%20Order%20re_Ensuring%20Reliance%20Upon%20Sound%20Economic%20Analysis%20in%20Department%20of%20Transportation%20Policies%20%20Programs%20and%20Activities.pdf.

^[16] See Off. of Mgmt. & Budget Memorandum, supra note 12.

^[17] Complaint at 28, State of New York v. Trump, No. 25-cv-00039-JJM-PAS, 32 (D. R.I. Jan. 28, 2025).

^[18] Id. at 32

^[19] Id. at 33.

^[20] Temporary Restraining Order, State of New York v. Trump, No. 25-cv-00039-JJM-PAS (D. R.I. Jan. 30, 2025).

^[21] Order on Motion to Enforce Temporary Restraining Order, State of New York v. Trump, No. 25-cv-00039-JJM-PAS (D. R.I. Feb. 10, 2025).

^[22] Charlie Savage & Minho Kim, Vance Says ‘Judges Aren’t Allowed to Control’ Trump’s ‘Legitimate Power,’ N.Y. Times (Feb. 9, 2025), https://www.nytimes.com/2025/02/09/us/politics/vance-trump-federal-courts-executive-order.html.

^[23] Tom Hals, Musk and Trump allies ratchet up rhetoric against the judiciary, Reuters (Feb 11. 2025, 9:13 PM), https://www.reuters.com/legal/musk-trump-allies-ratchet-up-rhetoric-against-judiciary-2025-02-12/.

^[24] See Order on Motion to Enforce, supra note 21.

^[25] Edwin A. Miles, After John Marshall’s Decision: Wooster v. Georgia and the Nullification Crisis, 39 The Journal of Southern History 519 (1973).