Climate Youths’ Fresh Claims Target Trump Orders as Overreach

President Donald Trump’s pro-energy agenda is confronting a new challenge from a constitutional youth climate lawsuit that is using a legal theory that has already seen success disrupting the administration in court.

Legal nonprofit Our Children’s Trust recently launched Lighthiser v. Trump, which like many of the group’s other cases centers around the argument that the US government is affirmatively violating kids’ constitutional rights to life by eroding the stability of the climate.

The Justice Department’s motion for dismissal in Montana federal court said the Lighthiser complaint only “recycled” the failed claims of its predecessor, constitutional rights case Juliana v. US.

But Lighthiser plaintiffs are also bringing “ultra vires” claims, which challenge executive actions that exceed presidential authority by breaking laws set forth by Congress. At issue in this case: three of Trump’s executive orders declaring an energy emergency, altering agency science, and promoting coal production.

“I don’t know that the constitutional theories will do any better than they did in Juliana,” said Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law. “However, the ultra vires kinds of claims are getting a lot of traction.”

There have been more than 50 cases that raise ultra vires claims against the second Trump administration, according to a Sabin Center analysis. It found 13 of the 27 cases that met its criteria for study already have preliminary determinations—rulings on whether the party is likely to succeed on the merits—12 of them in favor of plaintiffs.

One such case, Metropolitan Transportation Authority v. Duffy, challenges the Federal Highway Administration’s bid to end congestion pricing in New York City. The presiding judge in May handed down a preliminary injunction in favor of plaintiffs, blocking the Trump administration from taking any more action on the program’s termination while litigation presses on.

A federal judge in northern California also granted a temporary restraining order in federal workforce cuts in Am. Fed’n of Gov’t Emps. v. Trump, but the Supreme Court ultimately let Trump continue with the mass firings.

Ultra Vires

Some court watchers, though, still see Lighthiser as a long-shot.

Juliana was first rejected in 2020 because the US Court of Appeals for the Ninth Circuit ruled plaintiffs couldn’t meet standing requirements. The split panel’s decision found a court couldn’t provide the remedy they sought against the US government—partly because the challenge targeted federal inaction rather than action.

The injury Lighthiser plaintiffs are “claiming ultimately results from the inaction that would result from following the affirmative directive of the executive order,” said Donald Kochan, a law professor at George Mason University. “So both cases actually are going after inaction.”

The slate of ultra vires cases against the Trump administration give courts plenty of opportunities to further probe the limits of how far executive orders can go, according to the Sabin Center.

Trump has issued more than 170 of these directives for federal agencies and employees so far. “Unleashing American Energy” and “Declaring a National Energy Emergency,” which are targeted in Lighthiser, were among the first of them.

“The question, I think, will turn on whether the courts want to accept that anything the president says is an emergency is an emergency, or whether there are some boundaries on what the president can declare, and thus, allocate to himself certain powers to take action,” Yale Law School professor Daniel Esty said.

The Environmental Protection Agency has been implementing Trump’s energy orders with gusto, which Lighthiser alleges is causing an unconstitutional upending of EPA’s statutory mandates.

“Pursuant to the EOs, Defendants are methodically acting to ‘unleash’ fossil fuel energy and the GHG pollution that accompanies it by dismantling government policies and restrictions that prevent GHG pollution,” according to the complaint.

Implementation Begins

Agencies including the EPA and the Department of Energy have been faithfully following Trump’s directives since January, most recently with EPA proposing to rescind strong emission limits for power plants. A proposal rescinding the 2009 endangerment finding for greenhouse gases is also expected any day.

The EPA has collected or plans to take public comment submissions on those proposals, but some actions have made big changes without any notice and comment rulemaking procedure at all.

The Trump administration also has been steadily issuing compliance exemptions for heavy industry, based on an obscure and previously unused Clean Air Act provision granting presidential reprieves if “the technology to implement such standard is not available and that it is in the national security interests of the United States to do so.”

Ultra vires claims may be gaining traction in lower courts, but climate law experts including Lewis & Clark Law School professor Lisa Benjamin are discouraged by what she said feels like an unpredictable legal environment.

The ultra vires theory makes Lighthiser “much more attractive” for lower courts to adjudicate and probe further, Benjamin said, but she is worried that US Supreme Court trends of ruling in Trump’s favor from its emergency docket may also dull the chances for the case’s ultimate success.

“It’s just a really difficult time to predict how the Supreme Court is going to interpret the way that agencies are acting, and to this point, at least in shadow docket decisions, they have not restrained the administration from acting strictly in accordance with an executive order,” Benjamin said.