US President Donald Trump's recent threat of legal challenges against state climate and clean energy policies has roiled environmental markets waiting to learn the scope and avenues those confrontations could take.
Trump's 8 April executive order, which directed the Department of Justice (DOJ) to consider contesting state policies that threaten "American energy dominance", targeted California's cap-and-trade program by name, but it may also extend to other policies, including renewable portfolio standards (RPS). But uncertainty about the extent of the administration's ambitions has injected another variable into an already volatile economic landscape.
Market anxieties may not fade soon. US attorney general Pam Bondi has until early June to report on actions she has taken and make recommendations for other steps by the White House or Congress. Conservatives in some states already have asked her to scrutinize particular programs.
Administration arguments
One angle from which the DOJ could attack state programs is the well-trod "dormant Commerce Clause", a legal doctrine that says state laws cannot discriminate against or impose undue burdens on another state's economic activity. But such a challenge is more difficult if a program is merely stipulating, "if you want to come to our state, our electricity market or our fuel market, here are the rules to play by", according to Matthew Dobbins, a partner at Vinson & Elkins and member of the law firm's environment and natural resources team in Houston.
Courts have dismissed lawsuits that tried this approach against low-carbon fuel standards in California and Oregon, as well Colorado's RPS. In addition, an appeals court last year threw out a case against Washington's cap-and-invest program, ruling it did not overstep in its handling of in-state versus out-of-state electricity suppliers. The US Supreme Court may soon decide whether to hear an appeal of the case.
More broadly, a 2023 Supreme Court decision upholding a California law restricting interstate pork sales based on animal treatment makes such dormant Commerce Clause challenges "a lot harder", according to Nico van Aelstyn, partner at Sheppard Mullin in San Francisco.
The DOJ could try using the "Equal Sovereignty" doctrine, which stipulates that one state's rights cannot exceed another's, van Aelstyn said. This has been used in cases against California's vehicle emissions standards and other states' climate "superfund" laws, which penalize oil and gas companies for historical emissions. But van Aelstyn described it as "not really tested yet."
That administration has also been hoping to fast-track Supreme Court rulings on the executive orders by justifying them through "declared emergencies," according to Dobbins.
This use of emergency powers will likely reveal how far the court will go to "pressure test" the administration's requests for speedy judicial relief, as justices work through a growing emergency docket through the end of term in June or July.
Relitigating the past
Amid growing trade tensions between the US and Canada, the DOJ could also revive a 2019 lawsuit against California's cap-and-trade program.
A US district court at the time ruled that federal purview over foreign affairs does not preempt the state linking its program with Quebec's. Although the first Trump administration appealed the ruling, former president Joe Biden withdrew the case, leaving the matter undecided with one claim potentially still ripe for judicial review.
"What that'll probably come down to is how much Canada has expressed its anger . . . and if the administration is willing to go 'all in' on trying to provoke one of our largest trading partners," Dobbins said.
But even if California severed ties with Quebec, the province is a small part of the market, and its absence is unlikely to cripple the state's program.
Meanwhile, in the markets…
Trump's executive order has put states and US companies alike on the back foot, adding to a "shock and awe" barrage from tariffs and potential rollbacks to federal clean electricity incentives, said Tom Harper, a partner on consultant Baringa's energy advisory team in New York City.
That volatility has led clean energy developers and buyers to hold off on decisions until they have a bit more stability.
"You're almost in a state of paralysis because you can't go and deploy a team on a project. You can't go and arrange finance because the cost is moving day to day," Harper said.
The tariffs have also fed growing concerns about the US economy, which have spilled into environmental markets. The California Carbon Allowance (CCA) market, already a bit bearish because of ongoing delays to planned program changes, plunged the day after Trump's executive order. Argus assessed CCAs for December delivery that day at $26.74/t — at the time their lowest price since November 2022. The lack of certainty around federal legal developments continues to whittle away at bullish signals, leaving market participants to wait for a clear outcome.
Adding another layer of uncertainty is the fact that disputes may spill outside of the court system. Following the same logic as of Trump's "national energy emergency", the US Federal Energy Regulatory Commission (FERC) could hypothetically issue an emergency order to halt carbon and clean energy programs. The recent resignation of a Democratic commissioner, giving Trump the ability to install a Republican majority, could facilitate that pathway. But using FERC to shutter these programs would be on weak legal footing, van Aelstyn said.
The Trump administration has no issue using extrajudicial tools to enforce its policies, such as its January pause on federal funding that left states like California — which receives more than $100bn in backing and grants from the US government each fiscal year — grappling with potential budget holes. Two federal courts have said the administration must dole out the funds, but agencies have been slow to comply.
"If they can withhold congressionally appropriated research funds for universities because they don't like their policies with regard to free speech on their campuses, what else might they do?" van Aelstyn said. "Withhold Medicaid funding to states where they don't like their renewable energy standards?"
