As growing numbers of Americans watch helplessly as their homes and cities become engulfed in flames or inundated by floods intensified by climate change, they are increasingly demanding that their lawmakers force polluters to foot the bill for these climate crimes. A June 2024 poll by Data for Progress found 62% of Americans believe so.
Who are climate criminals? The legislation is targeted at fossil fuel companies, having known for over fifty years that their products would release carbon dioxide, a major greenhouse gas contributing to the climate crisis, when burned. These corporations, heavily subsidized and paying little to no tax, forbade their scientists from reporting the truth about their products to the public and sowed doubt about climate change through slick marketing tactics that continue to this day.
Meanwhile companies like Exxon, Chevron, BP, and Shell rake in a combined $100 billion or more in profits every year.
In 2024, a few states responded to the public’s demands for legislative action by enacting Make Polluters Pay laws that require fossil fuel companies to contribute to climate superfunds. This money is designated for infrastructure upgrades including more resilient stormwater drainage systems or roads as well as building improvements such as energy-efficient heating and cooling systems in schools or public housing. Sometimes, a significant portion is earmarked for initiatives in disadvantaged communities damaged by climatic events.
All of these climate superfund laws take their inspiration from the Comprehensive Environmental Response, Compensation and Liability Act of 1980, often called the Superfund law.
Climate change superfund laws follow on the heels of dozens of state- and city-initiated lawsuits, each seeking damages from fossil fuel companies for climatic catastrophes in their jurisdictions but moving slowly through the courts since 2017.
In this article, we’ll showcase the U.S. states fighting climate crimes with superfund laws.
Vermont leads in fighting climate crimes
Long believed to be a climate haven, immune to floods or fire worsened by climate change, the Green Mountain State experienced two catastrophic flood events within a 12-month period. So far, the total cost to Vermont arising from those two most recent flood events is estimated to be over $2.2 billion.
Overwhelmed by recovery costs, lawmakers passed the bill in May 2024, ordering the creation of a Climate Superfund Cost Recovery Program, seeking partial relief from the companies in proportion to their share of global greenhouse gas emissions over a 19-year period.
Republican governor Phil Scott allowed the law’s passage although he did not sign it.
New York is the second to pass a climate superfund law
Within a week after Vermont’s historic climate action, New York passed a similar law, the Climate Change Superfund Act, that would raise $3 billion annually over the next 25 years for climate change adaptation and mitigation. The law mandates fees based on the proportion of emissions by each of 36 companies that do business in the state, ranging from $200,000 to $644 million.
Democratic governor Kathy Hochul has yet to act on the passed bill.
State and federal action fighting climate crimes
Following Vermont and New York, three other states—California, Massachusetts, and Maryland—have introduced climate superfund laws in 2024. They are stymied in committee or shelved from a floor vote for now, indicative of the politically controversial nature of such bills, despite published opinions of leading newspapers that “It’s time for them to sacrifice some of their huge profits to clean up the environmental mess they helped create.”
Seeking a federal response to alleviate the severe economic hardships confronting states and cities dealt a bad hand by the climate crisis, Senator Chris Van Hollen of Maryland and Representatives Jerry Nadler of New York and Judy Chu of California introduced the Polluters Pay Climate Fund Act in September 2024.
“From sweltering heat waves to rising sea levels to ever more intense storms, our planet is screaming out every day for us to take action on global warming. And after fueling the climate crisis for decades, big polluters can no longer run from their responsibility to address the harm they have done. The principle behind this legislation is simple but very powerful–polluters should pay to clean up the mess they made and build a more resilient future, and those who have polluted the most should pay the most,” said Senator Chris Van Hollen.
If passed, the bill would require both American and foreign-owned fossil fuel companies doing business in the U.S. to contribute to a $1 trillion Polluters Pay Climate Fund, proportional to their global greenhouse gas emissions. As of this writing, the bill is in committee.
Potential challenges to climate superfund laws
Fossil fuel industry representatives have already indicated that the states’ climate superfund laws are unjust. Some of the legal arguments they advance include:
- State laws are preempted by federal laws such as the Clean Air Act (CAA). The U.S. Supreme Court weakened the CAA in 2022 by ruling the Environmental Protection Agency (EPA) cannot regulate greenhouse gases under the Act. However, in October 2024, the Court allowed the Biden Administration’s regulatory law on carbon emissions to stand while litigation continues.
- States lack regulatory authority over issues affecting national and international commerce.
- The fees imposed on fossil fuel companies are severely disproportionate to the resulting alleged harm.
- Industries and car drivers who use fossil fuels are liable as well for damages and should pay into climate superfunds.
- Attribution science, which allows scientists to estimate how much climate change intensified particular storms, is not a legitimate science and must be excluded from calculations of alleged climate harms.
As of this writing, no state has charged any fossil fuel company under a climate superfund law. Whether any of these arguments will succeed in the courts remains to be seen.
