It’s already Trump’s world. California is just living in it.

LOS ANGELES — As California officials prepare to defend their climate policies from a potential second Donald Trump administration, a new reality is dawning on them: Trump may have already won.

Leaders at every level of government are stress-testing their climate laws, looking to make deals with industry to circumvent lawsuits and calling on the Environmental Protection Agency to grant California permission to implement clean air regulations ahead of the election.

But they’re also realizing that no matter who wins in November, many of their climate rules could end up before a Supreme Court stacked with Trump appointees hostile to climate regulation.

“There are two distinct threats. One is the Trump administration, and one is the courts,” said Ann Carlson, former head of the National Highway Traffic Safety Administration under President Joe Biden.

California’s environmental regulators are no strangers to lawsuits from industry. But times are changing. High-profile Supreme Court cases in the past two years that limited EPA’s ability to protect wetlands and regulate greenhouse gases around the country have climate leaders worried California’s nation-leading environmental rules could be next.

“Given the court's interest in all things climate related, all things Clean Air Act related, it's not a stretch to think that they will take up the California waiver,” said Carlson, who is now a University of California, Los Angeles environmental law professor.

California has a unique authority to set its own stricter-than-federal tailpipe emissions standards under the Clean Air Act, provided it receives federal permission. Environmentalists and lawmakers are currently pushing the EPA to expedite eight pending waivers for truck, tugboat, passenger car, lawn mower and train rules ahead of the election, so that Trump can’t deny them if he takes office.

But it’s a strategy with limits. For one, Trump has already vowed to simply revoke any clean car waiver that’s already granted. (He attempted it in 2019).

And industry leaders who oppose the state’s tailpipe regulations say they’re going after the rules in the courts even if Vice President Kamala Harris, a longtime champion of the California waiver system, wins.

“If Trump gets elected, probably one of the first things he'll do if the waiver is issued, is jam that waiver right back up California's tailpipe,” said Matt Schrap, CEO of the Harbor Trucking Association, a coalition of carriers serving the West Coast port that's backing a lawsuit to block California’s 2023 rule requiring truck fleets to transition to zero-emission engines.

Trump reiterated his position on Saturday at a rally in Southern California. “I would not allow California politicians to get away with their plan to impose a 100 percent ban on the sale of gas powered cars and trucks,” he said, referencing rules that would phase out sales of combustion engine trucks by 2045 and and gas-powered cars by 2035.

But the election isn't the main factor determining the future of California’s clean truck purchasing mandate, Schrap said. “They're getting sued no matter what, is kind of the end result.”

Threats on all sides

If Trump wins the election, California could also use the courts to its advantage by filing lawsuits and running out the clock on his environmental rollbacks, including his waiver attacks, as the state did when he was president.

But if a case against the waiver does make it to the Supreme Court under any administration, the state has cause for concern.

“It’s just been a kind of head on assault on environmental protection and on the administrative state more generally,” said Carlson. “I do think we have to be wary.”

California’s tailpipe regulations, followed by seventeen other states, have nationwide ripple effects and have drawn legal challenges from plaintiffs both inside and outside the state.

The U.S. Court of Appeals for the District of Columbia Circuit declined in April to hear a lawsuit from fossil fuel interests and Republican states led by Ohio, arguing they didn’t have standing to claim harm as a result of California’s 2012 clean car rules that Biden reinstated after Trump tried to revoke them.

But it’s only a matter of time before California’s federal waivers are before the Supreme Court, which has shown increasing skepticism around using the Clean Air Act to regulate greenhouse gases.

“The threat never really goes away until you win this in the Supreme Court, where you know what they think,” said Craig Segall, a former deputy executive officer with the California Air Resources Board who now serves as vice president of the environmental group Evergreen Action.

He said the court could decide to take up Ohio v. EPA , a Western States Trucking Association case against California’s truck sales mandate that's on hold until Ohio v. EPA gets resolved, or challenges to any number of rules that the air board is already defending while it waits for decisions on its waivers.

To stall one challenge, the board struck a deal with the California Trucking Association to delay implementation of its clean truck purchasing mandate until a waiver decision comes through. A federal district court this month paused an industry challenge to a rule to limit locomotive emissions until the EPA makes a waiver decision.

But industry is ready to pounce with new lawsuits against EPA as soon as the decisions are made. “If the waiver is issued, that lawsuit will come out immediately," Schrap said.

Legal strategies shifting

If a case makes it to the Supreme Court, the justices have any number of tools to strike down EPA approvals. One is the major questions doctrine, which bars agencies from resolving questions of “vast economic and political significance” without clear authorization from Congress. The court recently used that to block the Clean Power Plan , an EPA rule to reduce greenhouse gases from existing power plants, and in 2014 used it to limit the EPA’s authority to regulate greenhouse gases from new sources .

Another is the recent overturning of the Chevron deference , which rolls back the authority of federal agencies to interpret ambiguous language in laws, at play in the court’s recent reading of the Clean Water Act that limited the EPA’s ability to protect wetlands. There’s also the recent and unprecedented slate of stays for EPA rules like the Interstate Air Pollution Rule and Good Neighbor Rule for coal plants, which can delay them for months or years.

“You could see the court using the major questions doctrine, basically saying California is, by adopting the zero emission Advanced Clean Cars II standard [a pending rule that bans gas-powered car sales by 2030], working a major transformation of an industry,” said Carlson. “Or they could use Chevron and say, in granting a waiver, EPA is wrong in how it's interpreting compelling and extraordinary circumstances.”

Joseph Goffman, EPA’s lead air quality official, acknowledged the legal challenges at a July event in Los Angeles, saying federal regulators are working with state officials to make sure the rules will hold up in court.

“We're taking extra special care to make sure that when we announce our decisions about those waivers, those decisions are based on a really solid technical and legal foundation,” he said.

To that end, California government lawyers are targeting conventional pollution, rather than just carbon, which the Supreme Court has shown more skepticism in using the Clean Air Act to address. The waiver system was born in the 1960s out of a need to regulate air pollutants like ozone and particulate matter, when California was so far out of alignment with federal standards that the state required stronger rules to “address compelling and extraordinary circumstances.”

Though the state has made progress since then, ongoing pollution from the transportation sector and industry combined with a valley topography have left wide swaths still unable to meet the standards from the 1990s , let alone the most current clean air regulations, which California air regulators regularly point out.

“[California’s Air Resources Board] has been careful, appropriately, to show that the waiver requests would attack conventional air pollution,” said Carlson, who noted that Supreme Court Justice Brett Kavanaugh upheld EPA's use of the Clean Air Act to address conventional pollution when he was on the DC Circuit Court of Appeals.

Segall agrees it’s a good strategy. But he added that nothing's guaranteed.

“We definitely see the court sort of make up new legal rules all the time,” he said. “What is a good legal response if I'm doing fair lawyering is different than if you think the Trump appointees on the court are not really doing law.”

Other tactics

He’s advocating for deals with industry, a tried and true Trump-proofing strategy to circumvent lawsuits, and earlier this month sent a letter to automakers asking them to side with California and the EPA in case of any legal challenges. Companies like Ford, Volkswagen, Honda and most recently Stellantis have already agreed to do this in California, although with the trucking industry there may be less room for a deal because the industry is in the earlier stages of electrification

“That one does scare me, the heavy-duty piece,” state Sen. Henry Stern said on a recent UCLA panel. “It doesn't feel like there's a real electrification decision yet that has been made at a global scale.”

The California Legislature last year looked into creating a program that would use rebates and fees to incentivize truck companies to go electric, as a backup alternative to more legally vulnerable regulations. They may pick the effort back up next year.

In the face of legal challenges, as well as Trump’s threats to roll back the billions in Inflation Reduction Act funding that California is relying on to pursue its climate goals, Stern said the state is keying into policies that don’t require federal waivers. Recent examples include a spending bond on the November ballot to raise $10 billion for climate-related projects and upcoming plans to reauthorize the state's carbon-pricing program under state law.

“We're already chipping away at that sort of self-determination, in a sense,” he said. “We know there are areas in law that are fraught with peril.”

Companies could still go after California’s rules and programs that derive their power from state law, rather than federal law, but they’re far less likely to wind up before the Supreme Court unless there’s a constitutional challenge.

Paul Cort, director of Earthjustice’s zero-emission campaign, said Trump’s threat to immediately revoke the waivers could work to California’s benefit. That’s because the revocation process can be drawn out — it took more than a year for the Trump administration to withdraw California's car emissions waiver after it initially proposed the move — and could help run the clock out on legal challenges.

“That's what basically doomed the industry challenges,” he said. “Because of that back and forth, they didn't get a clean shot at these litigation issues before the standards ran out.”

Even if the Supreme Court makeup is set for the near term, the election still matters for future legal challenges against California’s clean air rules.

With the demise of Chevron, lower courts have gained a new ability to question what were previously considered agency prerogatives, and the next administration will likely be appointing lots of them.

“Judges appointed by Trump are much more willing to strike down regulations saying that they don't have to defer to the agency,” said Carlson. “That's not true with judges that are appointed, say, by Obama or Biden.”