The suit, filed May 9 by the Democrat-run states, also names the U.S. Army Corps of Engineers and the Advisory Council on Historic Preservation, as well as several agency leaders, as defendants. State officials in the suit want a judge to declare the order unlawful and to block the agencies from issuing permits on an emergency basis related to the order.

The states argue in their suit that the executive order is an unlawful reach beyond the president’s legal authority. Historically, the Corps and other agencies have used emergency procedures for projects needed in the aftermath of disasters such as the 2010 Deepwater Horizon oil platform explosion or severe damaging storms. 

“The invocation of the country’s emergency authorities is reserved for actual emergencies—not changes in presidential policy or because the president feels like it,” California Attorney General Rob Bonta said in a statement. “These procedures misuse authorities meant for disaster response and bypass important health and environmental protections for the benefit of the fossil fuel industry.”

In his order, Trump stated that expanding national energy infrastructure “is an immediate and pressing priority” to protect national and economic security. Administration officials have not yet formally responded to the suit, but a White House spokesperson told the Associated Press that the president “has authority to determine what is a national emergency, not state attorneys or the courts. He recognizes that unleashing American energy is crucial to both our economic and national security.”

By bypassing normal regulatory processes, states say the hastened permitting will result in environmental damage.

“Environmental regulations exist because we’ve seen what happens when they don’t,” said Casey Sixkiller, Washington Dept. of Ecology director, in a statement. “The federal administration is proposing an end-run that ignores the hard lessons of the past. These protections aren’t red tape—they’re guardrails that protect our air, water, land and keep our families safe.”

States participating in the suit include Arizona, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington and Wisconsin. Other than Vermont and Wisconsin, the states also are part of a group of 17 states and District of Columbia that just sued the Trump government over his order temporarily halting permitting approvals for wind energy projects. 

But federal officials have already taken action to fast track energy project reviews. The Corps identified hundreds of projects to expedite under the directive. Earlier this month, agency officials in Detroit cited the order when they announced an accelerated timeline for review of Enbridge Energy’s proposed Line 5 Tunnel Project to build a replacement of the oil and natural gas liquids pipeline tunnel under the Straits of Mackinac in Lake Michigan. 

Public comment on the Line 5 project’s environmental impact statement was moved up from sometime next year to 30 days ending June 30, and Corps officials said they anticipate issuing a decision this fall. 

But one observer is skeptical that the expedited approval process will work.

"The AI-related national energy emergency declared by Trump has at best only a tenuous relationship with the Army Corps’ emergency regulation," Dan Farber, faculty director of the Center for Law, Energy and the Environment at the University of California, Berkeley School of Law, said in a May 13 opinion in Utility Dive. "If the Corps does make wide use of this regulation where it doesn’t apply, courts have an obligation to make the Corps start over again. Thus, the process for processing a permit application will take longer than ever."

Legal Battlefield

The lawsuit is the latest salvo in a series of developing legal battles over energy, pollution and climate change—with parties that include groups of attorneys general organized by political affiliation, oil and gas companies, industry groups and federal and state governments turning to courts to answer questions about climate liability and compensation.

The administration announced May 1 legal action to prevent states from suing or recovering costs from fossil fuel companies related to climate change, with the U.S. Dept. of Justice on April 30 filing lawsuits against Michigan and Hawaii and complaints against New York and Vermont.

The suits filed against Hawaii and Michigan are preemptive, intended to block the states from suing oil and gas companies, measures they were exploring. The planned legal steps are “unlawful state overreach that would threaten [U.S.] energy independence,” said Acting Assistant Attorney General Adam Gustafson in the agency's environment and natural resources division.

“Overreach” was the same accusation Hawaii levied against the DOJ in a May 1 press release which also announced the state had filed its lawsuit against fossil fuel companies. Hawaii Attorney General Anne Lopez called Justice's involvement a “direct attack on Hawaii’s rights as a sovereign state,” and said it would “vigorously oppose this gross federal overreach.” 

Hawaii filed against seven oil and gas companies and subsidiaries, as well as the American Petroleum Institute for what it describes as “deceptive conduct leading to the current climate crisis,” in the release. “Hawaiʻi has spent, and will continue to spend, substantial sums to recover from and adapt to climate change-induced harms,” said the suit. It calls for the firms and lobby group to “abate, directly or through an abatement fund, the harm caused by their conduct.”

The complaints against Vermont and New York pertain to state laws allowing them to recover costs from fossil fuel companies—up to $75 billion over 25 years per New York’s law—to be used for infrastructure and climate adaptation work. Justice wants the laws declared unconstitutional, claiming they are “preempted by the federal Clean Air Act" and other federal authority, according to the press release.

Vermont’s first-in-the-nation Climate Superfund Act and New York’s Climate Change Superfund Act were enacted last year, with several other states considering similar legislation. 

The laws were already being challenged by API and U.S. Chamber of Commerce in a suit against Vermont filed last year, and by attorneys general from 22 states and several industry groups in a suit filed against New York in February. West Virginia Attorney General JB McCuskey described the New York law as “unconstitutional.” Following the DOJ's May 1 announcement, 24 Republican attorneys general asked to join the lawsuit against Vermont. 

With state and municipal actions against fossil fuel companies growing, the Justice Dept.'s legal moves may interrupt that momentum. 

“The unusual decision to preemptively file lawsuits against Hawaii and Michigan (rather than intervene in active lawsuits by other states) suggests that the [agency's] recent lawsuits were at least in part an attempt to discourage states from bringing new legal actions,” says an analysis by law firm Foley & Hoag. “Only time will tell whether these attempts ... will have a lasting impact on state policies and continued efforts to pass other state Climate Superfund laws.”