By Adam Pagnucco.
Yesterday, President Donald Trump issued a new executive order requiring the U.S. Attorney General to identify and “stop the enforcement” of state and local laws “burdening” energy production and usage. If this indeed leads to legal action, Maryland and MoCo present a target-rich environment.
The executive order is titled Protecting American Energy from State Overreach. It begins with a diatribe against states seeking to regulate the energy industry to limit climate change. Here is an excerpt:
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Many States have enacted, or are in the process of enacting, burdensome and ideologically motivated “climate change” or energy policies that threaten American energy dominance and our economic and national security. New York, for example, enacted a “climate change” extortion law that seeks to retroactively impose billions in fines (erroneously labelled “compensatory payments”) on traditional energy producers for their purported past contributions to greenhouse gas emissions not only in New York but also anywhere in the United States and the world. Vermont similarly extorts energy producers for alleged past contributions to greenhouse gas emissions anywhere in the United States or the globe.
Other States have taken different approaches in an effort to dictate national energy policy. California, for example, punishes carbon use by adopting impossible caps on the amount of carbon businesses may use, all but forcing businesses to pay large sums to “trade” carbon credits to meet California’s radical requirements. Some States delay review of permit applications to produce energy, creating de facto barriers to entry in the energy market. States have also sued energy companies for supposed “climate change” harm under nuisance or other tort regimes that could result in crippling damages.
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So what does Trump want to do about this? This is the action plan in the executive order.
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Sec. 2. State Laws and Causes of Action. (a) The Attorney General, in consultation with the heads of appropriate executive departments and agencies, shall identify all State and local laws, regulations, causes of action, policies, and practices (collectively, State laws) burdening the identification, development, siting, production, or use of domestic energy resources that are or may be unconstitutional, preempted by Federal law, or otherwise unenforceable. The Attorney General shall prioritize the identification of any such State laws purporting to address “climate change” or involving “environmental, social, and governance” initiatives, “environmental justice,” carbon or “greenhouse gas” emissions, and funds to collect carbon penalties or carbon taxes.
(b) The Attorney General shall expeditiously take all appropriate action to stop the enforcement of State laws and continuation of civil actions identified in subsection (a) of this section that the Attorney General determines to be illegal.
(c) Within 60 days of the date of this order, the Attorney General shall submit a report to the President, through the Counsel to the President, regarding actions taken under subsection (b) of this section. The Attorney General shall also recommend any additional Presidential or legislative action necessary to stop the enforcement of State laws identified in subsection (a) of this section that the Attorney General determines to be illegal or otherwise fulfill the purpose of this order.
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The State of Maryland’s Climate Solutions Now Act of 2022 codifies an array of climate change measures likely to arouse the ire of the Trump administration. Montgomery County has also passed laws requiring building energy performance standards (BEPS) and all-electric buildings. The state’s BEPS law and the county’s all-electric building law have already been targeted by lawsuits. Now Trump’s justice department could join in.
In the short term, the likely consequence of this is a whole lot more litigation – most of it financed by taxpayers. Over the longer term, with Trump having three and a half more (legal) years in office and a federal court system with a growing number of conservative judges, it will be interesting to see which state and local laws survive and which fall to the Sword of Trump. Elections have consequences, and few if any seem more consequential than the one we had last November.