As a Department of Justice lawyer for almost a decade, I went to court to defend EPA rules to protect our air and water, but also to protect EPA’s institutional capacity to set rules consistent with science and the law. Today, as an attorney for the Natural Resources Defense Council (NRDC), I’m in court again, but now I’m challenging an administration bent on dismantling the rules and the institutions I once defended.
The Trump administration’s attacks on public health and environmental protections are innumerable. The Trump EPA has asked the D.C. Circuit to vacate its national health standard for fine particulate matter pollution; declared a policy that declines to monetize health benefits of reducing air pollution, like avoided asthma attacks and premature deaths; and renounced authority to regulate greenhouse gas emissions from cars and trucks.
But President Donald Trump is also attempting to wipe away hazardous air pollution rules—rules designed to keep people from breathing carcinogens like ethylene oxide and neurotoxins like mercury—without public process, without a technical record, without even consulting his own EPA. To do so, he invokes a narrow, never-before-used provision of the Clean Air Act—Section 112(i)(4), 42 U.S.C. § 7412(i)(4)—which allows the president to exempt a source if he “determines” (1) that the technology to implement the standard is “not available” and (2) that an exemption “is in the national security interests of the United States.”
Before 2025, no president had ever used this authority in the 55-year history of the Clean Air Act. Last year, Trump exempted more than 180 facilities in six industries from updated hazardous air pollution rules. The exempted facilities represent broad swaths of or even entire industries and collectively emit thousands of tons of hazardous air pollutants. And now the Department of Justice asserts that the president’s exemption proclamations are unreviewable: that no matter how utterly unreasonable the president’s determination is, Courts have no power to ensure that Congress’s statutory limits are obeyed.
This move is not entirely surprising and not at all unique in the second Trump administration, which has seen expanded uses of executive power. The president has claimed a “predatory incursion” under the 1798 Alien Enemies Act to deport hundreds to El Salvadoran torture prisons and has claimed that trade deficits constitute an “unusual and extraordinary threat” to justify tariffs under the International Emergency Economic Powers Act. Now, the administration has made patently pretextual determinations to seize on a narrow statutory provision to decide whether polluters have to comply with the law—and whether communities get the protection from toxic air pollution that they are owed.
The president’s toxic exemptions are unlawful and lawless. My team at NRDC, with partners and co-counsel at national, regional, and community advocacy organizations, have collectively brought five lawsuits in the U.S. District Court for the District of Columbia asking the court to declare that the president’s action exceeds the authority that Congress conferred in the Clean Air Act. Our challenges invoke a tradition fundamental to the U.S. constitutional system and the rule of law: nonstatutory review of actions by government officials that are ultra vires of their statutory authority.
Nonstatutory Review and Ultra Vires Doctrine
In the modern administrative law era, courts typically look to the Administrative Procedure Act to supply the ground rules and cause of action for enforcing the limits of executive authority. But the legal tradition that executive action is accountable to the law made enforceable by courts is much older. The power of courts to review and declare executive action unlawful “reflects a long history of judicial review of illegal executive action, tracing back to England.”Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).
This “nonstatutory review”—the ability to seek relief against lawless executive action even when no statutory cause of action is available—has been essential to the United States’ legal tradition since at least Marbury v. Madison, a case invoking nonstatutory relief against the President. Where an executive official’s “powers are limited by statute,” “his actions beyond those limitations . . . are ultra vires his authority and therefore may be made the object of specific relief.” Larson v. Domestic & Foreign Comm. Corp., 337 U.S. 682, 689 (1949).
Ultra vires claims spiked in the first several months of Trump’s second term, as the administration has scavenged for statutory mouseholes to stretch into mountains of presidential discretion. (As of the end of July, the Just Security Litigation Tracker currently shows 176 cases raising ultra vires claims.) In the past year, courts have invoked ultra vires nonstatutory review to declare unlawful: Trump’s plan to construct a new White House ballroom with private funds; the deployment of the National Guard to Chicago; and imposition of a $100,000 fee for H1-B visas.
President Trump’s Clean Air Act Exemptions
The Clean Air Act exemptions are drawn from the same playbook. In March, EPA announced that it would be reconsidering several toxic air pollution rules and that polluters could, in the meantime, request a presidential exemption from those rules. To cash in on this free pass, facilities owners needed only to email EPA with their request to avoid following the law and continue spewing toxic pollution into the air that communities breathe. The “inbox from hell” filled quickly.
Soon thereafter, the president began signing proclamations. In April 2025, he exempted 68 coal-fired power plants (made 71 with an additional proclamation in July 2025), about one third of the industry, from regulations to reduce mercury and other toxic metals pollution. In July, he exempted 50 petrochemical manufacturers (made 70 with an additional proclamation in July 2026) and nearly 45 percent of commercial sterilizers from rules that EPA had estimated would reduce cancer risk in nearby communities by up to 96 percent and 92 percent, respectively. He also exempted the entire taconite iron-ore processing industry from the only federal regulations on mercury emissions from that industry. In October, he exempted one of two operating copper smelters, one of the worst lead emitters in the country. And in November, he exempted the entire coke ovens industry, which produces emissions “among the most toxic of all pollutants.”
Each exemption proclamation is little more than a page of generalities and boilerplate. None provides a meaningful analysis of the statutory factors that constrain the president’s authority: which “technology” to meet which “standard” is “not available” at the myriad exempted facilities, or a legitimate national security concern. Instead, each states almost identically that the president “ma[de] the following determinations”: that (a) “[t]he technology to implement the [applicable rule] is not available” and “does not exist in a commercially viable form sufficient to allow implementation and compliance with the [applicable Rule]”; and (b) that “[i]t is in the national security interests of the United States to issue this Exemption[.]” See, e.g., HON Exemption Proclamation.
The public health implications of the president’s proclamations are galling. Nearly 4.6 million people live within two miles of exemption-eligible facilities, and more than 4,300 schools and childcare centers are located within two miles of at least one exempted facility. The majority of affected communities have higher-than-average cancer risk from toxic air pollution and have “high” or “extreme” cumulative environmental and social burdens, according to the CDC’s Environmental Justice Index and Climate Burden score.
What also makes the president’s exemption proclamations particularly pernicious is their implications for presidential authority.
Trump asserts that Section 112(i)(4) allows him to exempt entire industries from hazardous air pollutant rules—with no public process, no reasoned factfinding, and no commitment to the statutory standards. As we show in our court filings, the coal-fired power plants and commercial sterilizers that had reported emissions data showing they were already capable of complying with revised rules nevertheless received exemptions premised on a “determination” that “technology to implement the standards” is “not available.” We further show that many of the requirements from which chemical manufacturers and coke ovens are now exempt are implemented not with “technology,” but with work practices like regular monitoring for leaks. Taken together, these reflect a process that is entirely disconnected from any legal standard.
We also show that the unreasoned proclamations directly conflict with determinations made by EPA on the public record. For example, just this past October, EPA concluded in a public rulemaking that coke oven facilities would not “face significant immediate compliance challenges” meeting the standards. Six weeks later, the president “determin[ed]” that “technology to implement” those standards was “not available.”
The lawlessness demonstrated by the president’s patently unreasonable interpretation and application of his statutory authority is exacerbated by the position advanced in defense of the exemptions. In moving to dismiss challenges to the exemptions, DOJ argues that even facially absurd, plainly irrational determinations are entirely shielded from judicial review. So long as the president recites the words “I determine” that the statutory standards are met, courts cannot look beyond the president’s bare recital of those magic words.
That cannot be. Where Congress provides limitations and requirements that “plainly delineate[] the outer limits” of the Executive’s authority, the exercise of statutory authority “may be susceptible to review for ultra vires acts that clearly violate its terms.” Nat’l Ass’n of Postal Supervisors v. USPS, 26 F.4th 960, 971 (D.C. Cir. 2022); see also Garfield County, Utah v. Trump, 179 F.4th 814, 824 (10th Cir. 2026). By DOJ’s telling, any congressional instruction about how and when the president is allowed to exercise authority is a mere paper tiger, overcome with the ipse dixit that the president’s action is lawful because he says it is so.
To adapt the Supreme Court’s recent articulation in the context of for-cause removal: Under Section 112(i)(4), whether the technology to implement a hazardous air pollutant standard is not available “is a decision only the President can make[.] But that does not mean that he may make that decision for any reason, or no reason.” Trump v. Cook, slip op. at 9. The limitations Congress imposes on the president’s exercise of discretionary statutory authority are enforceable through judicial review, in which courts must “independently interpret the statute and effectuate the will of Congress.” Id.
The Stakes for Public Health and the Rule of Law
Together, the Trump administration’s vision of the Clean Air Act’s exemption authority and shutting courts out from review is one of completely unchecked presidential power. The president could exempt entire industries for any reason or no reason at all, without any public process or public disclosure of the basis for any exemption. The public would be left with no legal recourse to defend their health and their communities from toxic air pollution foisted on them by pretextual, lawless action. The protections that communities from Houston to Louisville to Los Angeles fought for over decades could be wiped out with the stroke of the president’s pen.
But the implications go beyond the Clean Air Act. If courts cannot police whether presidential action has complied with limitations that Congress imposes, then no matter what Congress says to guide or confine the president’s authority, those limitations are effectively a nullity. “Statutory authority is created, not by congressional action, but by virtue of the court’s unwillingness to conclude that the president lacks authority for the action.” Kevin M. Stack, The Statutory President, 90 Iowa L. Rev. 539, 576-77 (2005).
That vision of presidential power is an anathema to the organizing principle of the United States’ constitutional system: “All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U.S. 196, 220 (1882). The principle that the United States is “a government of laws, not of men,” that law serves to guide and constrain institutions and officers, not to supply a fig leaf of cover for presidential whims, was central to my ethos as a DOJ lawyer. When I left DOJ, I feared the consequences of a political moment intent on cutting the machinery of government loose from that ethos. The exemption proclamations are an example of those fears being realized.
To be clear, new administrations can and have frequently revised rules put in place by predecessors. As a DOJ lawyer, I defended EPA rules issued under administrations of both parties that sought to change rules issued by the previous administration. But there’s a legally mandated process for making those changes, including an honest review of the scientific and technical record and listening to public input.
The exemption proclamations represent the replacement of rigorous administrative process with pure presidential prerogative. The people forced to breathe the toxic results of the exemption proclamations will pay the most direct price. But U.S. democracy and the rule of law will also pay the price of an unconstrained, lawless executive.
That’s why nonstatutory review and a robust ultra vires doctrine is so important in our current moment. Courts have and must use their authority to enforce limits on the president’s authority.
