Vermont and New York recently became the first states to enact “climate superfund” laws that require energy companies to pay to address extreme weather events and climate change.
With the Los Angeles area being devastated by wildfires, there are speculations that California could become the third.
Kaci Siegel, director of the Center for Biological Diversity's Climate Law Institute, said that “taxpayers bear 100 percent of the burden of climate change disasters,” and that this type of bill “requires Californians to pay some of the burden.” “We will reduce this,” he added.
But whether these new laws can withstand intense legal challenges from the oil industry and its allies is an open question. The first salvo was filed last month in federal court in Vermont by the U.S. Chamber of Commerce and the American Petroleum Institute. The lawsuit asked the court to block Vermont's law, saying it was unconstitutional and would impose “unreasonable and arbitrary penalties” based on flawed calculations.
“There are no energy producers in Vermont that want to be regulated,” the complaint states. “Nevertheless, we are seeking to impose significant fines on those producers, potentially exposing other states to increased energy costs while reaping financial benefits.”
The new state law is modeled on the decades-old federal Superfund program, which requires companies to pay for the disposal of hazardous waste. This was a very simple approach to restoration. Specific locations (such as old factories or waste disposal sites) could be identified, investigated, and dealt with individually.
In contrast, the Climate Change Superfund Act relies on emerging scientific fields to more broadly quantify the economic losses believed to result from climate change and determine which companies are most responsible. .
The laws in Vermont and New York are similar but not identical.
Vermont has developed a lengthy roadmap to find a way to assess the damage caused by global fossil fuel emissions from 1995 to 2024, and assigned the state treasurer and Natural Resources Agency to oversee the process. . Suggestions were solicited from outside experts.
Justin S. Mankin, a geographer and director of the Climate Modeling and Impacts Group at Dartmouth College, is one of the experts who submitted early proposals for how Vermont could conduct the assessment. He said that by leveraging a field of research known as attribution science, “we can always attribute factors that cause outcomes in many complex systems, and attribution of climate change is no exception.” said.
Attribution science is an emerging field that has allowed researchers to say with confidence whether some natural disasters have become more intense or more likely due to global warming.
New York state is taking a slightly different approach than Vermont, offering companies deemed responsible for the majority of emissions from 2000 to 2024 an amount of $3 billion per year over 25 years, which is already about $3 billion per year. They ask you to pay in one lump sum. The New York State Department of Environmental Protection is responsible for figuring out which companies are liable to pay.
A climate superfund bill was introduced in California last year without progress, but Siegel said he expects it to be reintroduced soon. Similar bills have been proposed in Maryland, Massachusetts, and New Jersey.
The Climate Superfund Act comes alongside a number of lawsuits by state and local governments accusing oil companies of covering up the dangers of climate change and paying for it. These lawsuits have faced mixed reception in state courts across the country.
Last month, a Vermont Superior Court judge allowed the state's case to proceed, adding it to the list of cases that have survived motions to dismiss. But on Tuesday, New York State Supreme Court Justice Anar Rathod Patel dismissed the city's lawsuit, writing that the city was “effectively recycling” claims that had been dismissed in an earlier lawsuit. That previous rejection was upheld in 2021 by the U.S. Court of Appeals for the Second Circuit, a ruling often cited by oil companies and their allies.
For example, the case against Vermont's climate change Superfund law relies heavily on the Second Circuit's decision that state law, not state law, governs the complex issue of global and interstate greenhouse gas emissions. It claims that it has become clear that it is a federal law. The judges wrote that the main federal law regarding emissions, the Clean Air Act, says emissions should be regulated by the Environmental Protection Agency, not the courts.
Phil Goldberg, special counsel for the Manufacturer Liability Project, which opposes climate change lawsuits, said last year's dismissal in Baltimore was a sign of the overall weakness of the case series. “It's clear that litigation is the wrong approach to addressing the very real challenge of climate change,” he said. The city of Baltimore is fascinating.
Patrick Parenteau, a senior climate policy fellow at the Vermont Law and Graduate School of Environmental Law Center, said the Los Angeles wildfires could ultimately elect a sympathetic jury for climate change lawsuits in California. “Imagine a jury in Los Angeles hearing a case like this,” he said, referring to claims that oil companies were hiding what they knew about climate change. “That's what companies are afraid of.”
