Trump has made it clear that he intends to be even more authoritarian in a second term than in his first. As president, he declared a national emergency to circumvent Congress’ refusal to fund his border wall. There’s little reason to suppose that having successfully exercised his emergency powers once, he wouldn’t do it again and again.
Although the National Emergencies Act (NEA) establishes procedures for declaring a national emergency, it doesn’t define the term. As Elizabeth Goitein points out, the definition is left to the president to decide when a national emergency exists. She also explains that “the authorities that can be triggered by such a declaration span almost every conceivable area of governance, from agriculture to military deployment to domestic transportation.” (Emphasis added)
Through an emergency declaration, Trump could suspend any part of the Clean Air Act implementation plan or any requirement concerning excess emissions penalties or offsets for up to four months if requested by a state governor.[iii] According to the Brennan Center, the statute has only been used to declare regional energy emergencies, including in states like Ohio, Indiana, Florida, Pennsylvania, and Alabama. Could Trump use it to further his fossil-fueled agenda? Why not?
It’s estimated there are over 150 statutory powers a president could avail himself of under a national emergency declaration. In addition to suspending the Clean Air Act, a president could waive the 30-day minimum comment period on proposed rules and regulations under the Energy Conservation and Policy Act (1975).[iv]
Under 42 USC § 8374, the nation’s chief executive “may allocate coal and require the transportation thereof for the use of any electric power plant or major fuel-burning installation; and may stay the application of any provision or rule pertaining to electric power plants for up to 90 days or the duration of the emergency, whichever is shorter.”
The solidly conservative Supreme Court will open possibilities that Trump didn’t fully benefit from in his first term. The failure of the Constitution or legislation to account for or define what constitutes a national emergency leaves a fertile field on which six conservative justices could expand the authoritative powers of the presidency. The ex-president will push the legal envelope throughout a second term in his efforts to pardon, protect, and reward friends while prosecuting enemies.
“[T]he Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.”
— Justice Robert H. Jackson
Should the Republicans win the White House and Congress, the possibilities of protecting and promoting continued reliance on fossil fuels would expand exponentially. Legislation could be passed that would preempt state laws in the case of suing oil companies for the damages caused by burning fossil fuels—thereby achieving/reinforcing the desired outcome in the Honolulu and other blue-city nuisance cases. Permitting reforms could be passed that promote fossil fuels and impede the transition to a low-carbon economy.
Far-right organizations like The Heritage Foundation and the America First Policy Institute have a partial to-do list for a second Trump administration and a Republican-controlled Congress. Their agenda includes preventing updates of the electrical grid that would accommodate expanding the use of solar and wind, stopping the states from adopting California’s car-pollution standards, and hollowing out the climate-related programs at the Department of Energy and the Environmental Protection Agency. (Project 2025)
The Trump administration ordered federal agencies to strip any mention of climate change or harmful carbon emissions from their websites and publications. A Trump 2.0 will continue that effort. It will all be aided by the ex-president’s efforts to get rid of career civil servants and replace them with MAGA-approved managers, policymakers, and implementers.
Trump will flood federal agencies with MAGA-approved managers, policymakers, and implementers aligned with the interests of the fossil fuel industry—not only in the Department of Energy but in the Environmental Protection Agency, the Departments of Interior, Treasury, Health and Human Services, Agriculture, and throughout the federal research community.
Fossil fuel interests will see much rosier times through Trump’s lenses. There’s a lot the ex-president has promised to do to bolster the oil and gas industry—and, if you will, stick it to the Wokes. But put yourself in the shoes of an oil company exec who’s just been asked—along with his industry colleagues—to cough up the cheddar.
Why would you spend the kind of money Trump is talking about for something he wants to—and will—do anyway? It’s not much of a deal. But, ever the negotiator, Trump will likely be willing to sweeten it. What could make it sweet enough to buy into?
How about legislation that would limit the liability of the fossil fuel industry the way the Price-Anderson Act does for the nuclear industry? It’s just a thought. However, I wouldn’t put it past Trump’s advisors and leading congressional supporters to give it a shot before the next election is upon them.
Should Trump re-take the presidency, he’ll have vengeance in his soul and six conservatives on the high court bench. None of this bodes well for the future of US climate policy.
Take heart. If there’s a silver lining in any of this, it’s that even Trump and his MAGA minions can’t stop the private sector’s continued adoption of cleaner and more sustainable alternatives. But by mucking up US climate policy, they can slow it down and cede competitive advantage to foreign nations.
Don’t forget to vote in November!
illuminem Voices is a democratic space presenting the thoughts and opinions of leading Sustainability & Energy writers, their opinions do not necessarily represent those of illuminem.
References and notes
[i] I would note that there’s a difference between efforts to influence by interest groups and the justices being influenced. However, legitimate questions seem to have been raised over “gifts” and pre-set agendas.
[ii] Patrick Parenteau is a professor and senior climate policy fellow at Vermont Law School
