Vermont made history last year when it enacted the country's first climate superfund law. It is designed to help the nation recover money from fossil fuel companies, helping them pay the rising costs of climate change.
If we can survive the legal challenges that are intensifying, that is.
On Thursday, the Department of Justice filed federal lawsuits against Vermont and New York. Vermont and New York are the only other states to enact the Climate Superfund Act, claiming that the measure is “a brave attempt to gain power from the federal government” and that it will force others to pay the state's infrastructure spending.
Hours later, West Virginia Attorney General John B. McCasky announced that he led another challenge to Vermont law, saying the measure would “scatter into oblivion for American coal, oil and natural gas suppliers.”
McCuskey had already filed a similar lawsuit against New York law seeking $75 billion from oil and gas companies over the next 25 years. On Thursday, he said the Vermont version could be “even more dangerous” because it lacks a currency cap.
He and 23 other attorney generals are seeking to take part in a lawsuit filed late last year by the American Petroleum Institute, an industrial group located in the U.S. Chamber of Commerce and the Vermont federal court.
West Virginia is a major producer of natural gas and coal. The complaint argues that the activities of fossil fuel companies are legal and that “Vermont enjoys the benefits of affordable and reliable fuels, but is trying to hold and eat cake by punishing entities that produce such fuel.”
The Climate Superfund Act is modelled on the federal Superfund program to clean up hazardous waste sites. Under that program, which has been around for decades, old waste dumping or contaminated industrial sites have been cleaned, and businesses that contributed to the contamination must help pay for the cleaning bill.
The new climate superfund law is based on the fact that the combustion of fossil fuels that produce carbon dioxide and other gases that warm the planet is a major factor in climate change. Therefore, the law allows states to seek money from fossil fuel producers to cover the costs of global warming. Similar bills are gaining momentum in several other states, including California, New Jersey and Massachusetts.
Vermont law and graduate environmental law expert Patrick Derprue said he called the Justice Department case “a signal of virtue” and expected them to be rejected. In the Chamber of Commerce case, he expects the state to argue that the lawsuit is premature. Officials are still in the process of deciding how the law is applied and are not directly affected by the measures, so the Chamber of Commerce is not expected to have a stance to sue.
Julie Moore, secretary of Vermont Natural Resources Agency, said she was nominated in both filings and that her office is reviewing details of the incident. She added that the Justice Department's actions were “not unexpected” given President Trump's April 8 executive order.
The order specifically cites new Vermont and New York laws, calling them similar to fear tor and threatens the country's economic and national security.
Letia James, New York Attorney General, appointed in the Department of Justice lawsuit, said Thursday that the Climate Superfund Act “will ensure that those who contributed to the climate crisis will help them pay for the damages they have caused.”
Meghan Greenfield, an environmental attorney who previously worked for the Department of Justice and the Environmental Protection Agency and is now a partner at Jenner & Block, said legal challenges for such new laws are inevitable. Some of the arguments used for the measures are new and untested in this context, and are related to “equal sovereignty” between states. It is the idea that it should be treated uniformly by the federal government, she said.
“We're looking at different layers here, new kinds of laws, and new kinds of challenges to that law, so it's kind of hard to predict how that will go,” she said.
She said she was also looking forward to further challenges to more traditional state climate laws, such as measures in New York and California.
