State Climate Superfunds: States Are Not Powerless to Hold Polluters Accountable

Daniel Milovic

Despite several international treaties and the publicization of increasingly sophisticated scientific assessments, climate change has only worsened. The federal government’s previous attempts to address climate change on its own have repeatedly failed to clear legal hurdles. And the current presidential administration is rolling back environmental safeguards instead of addressing climate change or enabling the recovery of climate change damages.

Vermont and New York, recognizing the existing gap in federal authority over climate change and associated damages, enacted two separate Climate Superfund Acts. Both of these laws follow a “polluter pays” model that holds major fossil fuel companies strictly liable for the climate adaptation costs incurred by the respective state. After calculating this amount, each fossil fuel company will be liable for a portion of the state’s damages based on the portion of that company’s greenhouse gas emissions over a limited time period. Each law is the subject of lawsuits filed by the fossil fuel industry, the federal government, and fuel-producing states that seek to find these schemes unconstitutional. Two of their arguments allege that the laws are either preempted by certain principles in the U.S. Constitution or by the federal Clean Air Act (“CAA”). This Comment focuses on Vermont’s Climate Superfund Act and rejects both of these arguments. First, the Constitution’s abstract principles are not specific manifestations of Congress’s intent to displace the states’ plenary police power. Second, the Clean Air Act does not address climate damages, nor does it provide a vehicle for recovering costs associated with greenhouse gases or climate change.