Can US courts save the Earth?

Since President Trump was inaugurated in January, he has unleashed a barrage of attacks on federal institutions, employees, laws, and regulations. Agencies that deal with climate, energy, and environmental policy have been on the receiving end of many of these attacks, more than a few of which are of dubious legality and go far beyond anything Trump attempted in his first term.

With Democratic minorities in the House and Senate, and virtually no resistance from Republicans in Congress, Trump’s agenda has rolled out with only the judicial branch as a “last bulwark” against it. Some have countered that the bulwark is leaky or partly collapsed, and “courts alone can’t save us.” Even so, lawsuits against various parts and officials of the Trump administration continue to pile up. The question is whether the administration will prompt a constitutional crisis by ignoring or defying judicial decisions it dislikes. Whether the United States is already in a constitutional crisis, or merely rapidly approaching one, is a matter of vigorous debate.

Michael Burger, the executive director of the Sabin Center for Climate Change Law at Columbia University, said this debate hinges on whether the Trump administration must defy the Supreme Court to launch a full-blown constitutional crisis, or if defying a lower court is enough.

But in Burger’s opinion? “We’re already there,” he said. “The only question is, how far is it going to go?”

Abigail Dillen, the president of the nonprofit environmental law organization Earthjustice, concurred: The country is already in a constitutional crisis. The Trump administration is also still obeying judicial orders—just not all the time.

Earthjustice is one of the most active players in the climate change space. The lawsuits they have filed against the second Trump administration include: suing the Department of Agriculture for freezing Inflation Reduction Act funding; suing the Department of Transportation for attempting to end congestion pricing in New York City; suing the Department of Agriculture for removing climate change information from federal websites; and suing the Department of the Interior for opening up formerly protected parts of the Arctic Ocean, Pacific Ocean, Atlantic Ocean, and Gulf of Mexico to oil and gas drilling.

Reporting this piece felt a little bit like trying to write about a rodeo while riding a bull and juggling at the same time. It’s all just too much, too fast. And if that’s how I feel as a climate journalist, I can only imagine what it must be like as a regular news reader. To try to make sense of the chaos, I reached out to legal experts for their thoughts on the current moment—trying to focus on the big picture, instead of getting lost in the weeds.

These are some of the biggest issues, current and future, to look out for in the climate-environmental law space.

A thousand cuts. The second Trump administration is significantly more emboldened than his first, and that’s evident in at least two of his new tactics: mass terminations of federal employees and freezing congressionally authorized funding for climate action and infrastructure upgrades.

“[Trump’s] first administration was definitely not pro-science,” says Lauren Kurtz, the executive director of the Climate Science Legal Defense Fund. “There was a lot of censorship, there was scientific misrepresentation, grants were cut, people were terminated—but the extent to which it’s happening now is much more extreme.”

As soon as Trump regained the presidency, he signed an executive order freezing funding awarded through the Infrastructure Investment and Jobs Act and the Inflation Reduction Act—money that was already awarded and earmarked, for example, for school districts upgrading their school buses to electric. In mid-April, a district judge in Providence, Rhode Island, issued an injunction blocking the funding freeze, but it remains to be seen if and when the promised funds will be disbursed.

While most of the “constitutional crisis” debate has been around immigration rulings, Burger says whether the Trump administration is defying orders with regards to climate funding is a bit fuzzier. “Courts have already issued decisions determining that the funding freeze in its various aspects—including freezing access to Greenhouse Gas Reduction Fund and other IRA pools of money—are illegal. But the noncompliance with the order to allow access to those funds is more difficult to demonstrate,” he explained. Some of the parties have been able to access funds, while others have not. Meanwhile, the Trump administration is scrambling for other reasons to deny funding. “They’re taking a variety of approaches to achieving a similar result while seeming to not be in direct defiance of judicial orders.”

The mass firings of federal employees have trickled out a bit more slowly than the blanket funding freezes, as the so-called Department of Government Efficiency moves from agency to agency, looking for alleged waste, fraud, and abuse.

As of late March, more than 120,000 federal employees had been fired from federal agencies, including 1,800 from the Department of Energy, 3,400 from the Forest Service, 800 from NOAA, 1,000 from the National Park Service, and 200 from the Federal Emergency Management Agency (FEMA). Many of these employees have been fired twice now, after a judge ruled that the initial firings were illegal, but that agencies could proceed to re-fire employees.

“Their efforts are focused on removing as many federal employees as possible, not in any organized, strategic way, like a controlled demolition or surgery,” Kurtz said. “Just a really sloppy arson job.”

Some of the scientists who have reached out the Climate Science Legal Defense Fund are filing for unemployment and figuring out what comes next, or even contemplating moving abroad. Many of them are younger scientists who only recently entered the workforce and were targeted because, as new hires, they were considered “probationary” and have fewer legal protections.

Kurtz has been referring fired scientists to employment lawyers working on class action lawsuits, training scientists about their First Amendment rights and ways to protect themselves, and connecting scientists whose grants have been frozen or rescinded with legal support.

“Deliberate lawlessness.” Since joining the environmental law nonprofit Earthjustice in 2000, Dillen has seen her fair share of presidential transitions and the sometimes-dramatic policy swings that accompany them. It’s normal, she says, for a new administration to attempt to roll back regulatory policies of its predecessor based on different findings of fact and interpretation of science as it applies to law.

But Trump is not just rolling back four years of environmental regulations by the Biden administration. He’s attacking the very bedrock of those laws by, for example, throwing out over 50 years of regulations by the Council on Environmental Quality to guide the enforcement of the National Environmental Policy Act, the law that requires the federal government to consider the environmental impacts of its actions. “Those changes were simply made and finalized without public comment or other process, and they’re saying that process will come afterwards,” Dillen said. This, she added, is a violation of the Administration Procedure Act, which requires new regulations—or the elimination of regulations—to go through a public notice and comment period.

“The strategy that we are seeing is act first and worry about the legality later,” Dillen said. “And I might even argue that there is a deliberate lawlessness—to flex the executive power and suggest that courts cannot interfere.”

That’s precisely what President Trump did in his April 9 executive order, “Maintaining acceptable water pressure in showerheads,” in which he openly defies the requirements of the Administrative Procedure Act, writing, “Notice and comment is unnecessary because I am ordering the repeal.” This is, as Noah Feldman writes in Bloomberg, “a direct, overt violation of the law.”

Burger described what’s happening as an all-out assault on the core separation of powers principles underlying the constitutional system. The president, he explained, is operating as though “the executive branch is somehow not accountable to anything other than its own mission.”

The next four years. Lawyers are already busy challenging Trump’s mass terminations and funding freezes, but what comes next?

Burger expects to see more cases about state constitutional rights for a safe environment and stable climate, along the lines of the Held case in Montana and the Juliana case. “I think that we will also continue to see the courts used as a venue for seeking new forms of corporate accountability in a range of different ways,” he said. On the flip side, he said financial firms and asset managers will likely attempt to tamp down environmental, social, and governance (ESG) standards in corporate and business settings.

“Climate litigation does not move in one direction,” he said. “There’s a good deal of climate litigation that’s seeking to push back against climate action rather than encourage it, and I think that we’ll continue to see that, and may even see a significant expansion of that in the years in the near future.”

One example of such pushback could be oil and gas companies going after climate protesters, emboldened by a pipeline company’s recent win in a lawsuit against Greenpeace. A jury in North Dakota ordered Greenpeace to pay Energy Transfer $660 million dollars in damages stemming from actions related to the Dakota Access pipeline protests in 2016 and 2017. That decision will be appealed, but free speech advocates say it’s a grim sign.

Threats to protest rights are not brand new. Since 2017, states have passed dozens of laws that put restrictions on protests, and some of those specifically target climate and environmental protesters. For example, a Florida law enacted last year makes it a felony to trespass near pipelines and other infrastructure, even if there is no property damage.

Elly Page is a senior legal advisor at the International Center for Not-For-Profit Law, which maintains the US Protest Law Tracker. She expects groups that support, fund, and facilitate protests and movement organizing will be under increased pressure over the next few years. “I think there’s going to be increased scrutiny and surveillance of the whole ecosystem for protest,” she said. “Beyond just the folks in the streets or the folks at the pipeline construction site.”

Just this week, climate and environmental nonprofits were preparing for the possibility that Trump would strip the groups of their tax exempt status.

Without a doubt, many of the next big fights will be over deregulation. In March, EPA administrator Lee Zeldin announced his intention to roll back dozens of environmental regulations as part of the “greatest and most consequential day of deregulation in US history.” These include regulations targeting power plants and fossil fuel producers, mercury pollution, wastewater, vehicle standards, and air quality. “We are driving a dagger straight into the heart of the climate change religion,” he said in the announcement, which Dillen pointed out is “highly unusual” language.

In early April, Trump issued an executive order for agency heads to identify regulations to repeal, based on nearly a dozen Supreme Court decisions over the past decade that undermined the government’s regulatory authority.

“That agenda is going to take some time to carry out and put into place, and we don’t know exactly what it’s going to look like when they’re through the process,” the Sabin Center’s Burger said. “But we can anticipate that. And rest assured, there will be litigation challenging each and every thing that this administration seeks to do and undo in the climate and environmental law space.”