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Vermont is on the verge of becoming the first state to try it.
Dozens of cities and states have tried to sue the oil industry for damages related to climate change over the past several years, and so far, none of these cases has been successful. In fact, not one has even made it to trial.
In the meantime, the price tag for climate-related impacts has climbed ever higher, and states are growing more desperate for help with the bill. Out of that desperation, a new legal strategy was born, one that may have a better chance of getting fossil fuel companies to pay up. And Vermonters may be the first to benefit.
It’s called a climate superfund bill, and versions of it are floating through legislative chambers in New York, Massachusetts, and Maryland, in addition to Vermont. Though each bill is slightly different, the general premise is the same: Similar to the way the federal Superfund law allows the Environmental Protection Agency to seek funds retroactively from polluters to clean up contaminated sites, states will seek to bill fossil fuel companies retroactively for the costs of addressing, avoiding, and adapting to the damages that the emissions from their products have caused.
Though New York was the first state to introduce a climate superfund bill two years ago, Vermont may be the first to get it through a legislature. On Friday, the Vermont Senate voted 21 to five to approve amendments to the bill, and will vote next week on whether to send it to the House. An equivalent bill in the House is cosponsored by nearly two-thirds of state representatives and the policy also won the support of Vermont’s Attorney General.
If it gets past the governor’s desk, the bill will kick off a multiyear process that, in the most optimistic case, could bring money into the state by 2028. The first step is for the state Treasurer to assess the cost to Vermont, specifically, of emissions from the extraction and combustion of fossil fuels from 1995 to 2024, globally. Regulators will then request compensation from responsible parties in proportion to the emissions each company contributed. The state will identify responsible parties by focusing only on the biggest emitters, companies whose products generated at least a billion tons of emissions during that time. The money will go toward implementing a state “resilience and implementation strategy” to be mapped out in the next two years.
The idea of states retroactively billing fossil fuel companies for damages outside the context of a lawsuit might sound a little far-fetched. Or, at least, I thought it was when I first heard about it. How can that be legal?
Anthony Iarrapino, the lead lobbyist supporting the bill for the Conservation Law Foundation, a New England-based environmental law nonprofit, explained it this way. There is established case law that deals with retroactive liability in the context of hazardous waste — again, the Superfund law. “Even if your activities were legal at the time you undertook them, if they result in making a mess, then you can be on the hook for cleaning that mess,” he told me. “The idea here is looking at climate disruption as a polluted site.”
How is that fair? Well, the legal precedents supporting the Superfund law and similar policies turn on a key question. Did the companies understand that their activities were potentially harmful at the time they engaged in them? “If, objectively, you knew or should have known that your conduct, whether it was legal or not, was likely to result in damages that would impose costs on society,” Iarrapino said, “then it's fair, from a lookback perspective, to hold you accountable when those damages begin to manifest in the environment or in impacts to human health.” That’s because, according to precedent, you essentially assumed the risk that at some point in the future, you might be on the hook.
By now there’s a mountain of evidence that fossil fuel companies like Exxon did, in fact, know how damaging their products would be several decades before the period covered by the Vermont bill, based on internal research not shared with the public at the time. But Ben Edgerly Walsh, an advocate at the Vermont Public Interest Research Group, told me that even absent that evidence, they should have recognized the risk based on the scientific consensus that emerged in the 1970s and 1980s. To wit: Vermont chose 1995 as the start year for its bill because that’s when the first United Nations climate change conference was held.
“We shouldn't have to bear the cost of this ourselves,” said Walsh. “These oil companies that are still making hundreds of billions of dollars in profit annually should have to pay their fair share for the cost of the climate crisis they caused.”
Underpinning the bill — as well as many of the related lawsuits — is the advancement of “attribution science,” or the ability to quantify the economic losses that a region has borne due to anthropogenic climate change, as well as future losses that are already baked in, and then attribute them back to particular emitters. In testimony for the Vermont superfund bill, Justin Mankin, an associate professor at Dartmouth, stressed that these are peer reviewed, consensus, scientific methods — and that in general, they are conservative. “It is my opinion that we are systematically underestimating the economic cost of climate change to date,” he told the Vermont Judiciary Committee in February. “And that is because all of these climate damage cost assessment methods are inherently conservative, or limited by data.”
The bill’s sponsors also looked to research from Richard Heede, creator of the famous “Carbon Majors” database, which calculated the emissions of major fossil fuel companies based on the amount of oil, gas, and coal they each extracted and found that some 70% of fossil fuel emissions since 1988 can be attributed to 100 companies. In testimony to the Vermont Senate, Heede estimated that about 68 companies would be captured by the bill’s billion-ton threshold.
Of course, the fossil fuel industry patently disputes the science that Heede and Mankin expounded. The American Petroleum Institute submitted testimony warning of the “difficulties of establishing a conclusive link between anthropogenic climate change and alleged injuries to Vermont” and arguing that the emissions from individual companies over the last several decades cannot “be determined with great accuracy.” The group also called it “unfair” to charge the companies that sold oil and gas, considering they “did not combust fossil fuels but simply extracted or refined them in order to meet the needs and demands of the people.”
That might be where the biggest weak spot in the climate superfund bills — as well as the climate damages lawsuits — lies. There’s an underlying philosophical question, Martin Lockman, a climate law fellow at Columbia University, told me. Who in the supply chain is responsible for the pollution from fossil fuels?
The answer turns on a moral argument that fossil fuel companies have made enormous profits from fossil fuels for decades, all while knowing what the harms would be. “From a moral perspective, I think that these are very justified,” said Lockman, “but that will certainly get opened in litigation.”
If any of the climate superfund bills pass, they will absolutely be challenged in court. One reason they may see more success than the more direct lawsuits, however, is that they flip the burden of proof. If Vermont sued oil companies for damages, the burden would be on Vermont to prove its case, and as the defendants, the oil companies would get a “bag of tricks” to use to stall the case and make it very expensive to pursue, said Iarrapino. For example, many of these lawsuits have been delayed by years-long arguments over whether they should be tried in state or federal court, or whether the oil companies have to release certain documents.
“Even though it’s the same harms and the same contexts,” Iarrapino told me, “you’ve got a balance of power where they can win the case by losing slowly.” But if oil companies sue Vermont, for example, by calling its law unconstitutional, the burden of proof will be on them, and the state will have no incentive to delay the case.
I should note here that the federal Superfund law is not exactly the ideal model for this policy. Much of the time, the EPA can’t track down a company to ascribe blame for the contamination, and taxpayers end up footing the bill of the cleanup. Even when it does find a responsible party, said party often ends up litigating the amount owed for years. The Passaic River in New Jersey was declared a Superfund site 40 years ago, and the EPA is still fighting with Occidental over how much it should pay for the cleanup.
Iarrapino thinks there’s one key difference in the proposed climate superfund program. At contaminated sites, there can be a lot of potential polluters and so it’s difficult to assign blame. The Vermont bill attaches liability directly to the act of extracting and refining fossil fuels for combustion. “You either did that or you didn't do that,” he said. When it comes to companies like Exxon and BP, “that is their whole reason for existing.” That doesn’t mean companies won’t use all the firepower they have to dispute the amount they owe, however.
It may seem unfair for a single state, especially one as small as Vermont, to win compensation first when the damages are global and unequally distributed. But Lockman of Columbia said if these bills are successful, fossil fuel companies may stop fighting liability entirely and instead push the federal government to take action so they can be held to a more consistent standard across the country.
When I first reached Iarrapino, he told me that just downstairs from his office, someone was sawing and hammering the walls because the first floor had been entirely underwater when Montpelier flooded last summer. Three businesses that were in the building are gone. A recent estimate puts the cost of state-wide damages from the storm at $600 million.
“At this point,” he said, “what else does a state like Vermont have to lose?”
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New research out today shows a 10-fold increase in climate change-related smoke mortality from the 1960s to the 2010.
If you are one of the more than 2 billion people on Earth who have inhaled wildfire smoke, then you know firsthand that it is nasty stuff. It makes your eyes sting and your throat sore and raw; breathe in smoke for long enough, and you might get a headache or start to wheeze. Maybe you’ll have an asthma attack and end up in the emergency room. Or maybe, in the days or weeks afterward, you’ll suffer from a stroke or heart attack that you wouldn’t have had otherwise.
Researchers are increasingly convinced that the tiny, inhalable particulate matter in wildfire smoke, known as PM2.5, contributes to thousands of excess deaths annually in the United States alone. But is it fair to link those deaths directly to climate change?
A new study published Monday in Nature Climate Change suggests that for a growing number of cases, the answer should be yes. Chae Yeon Park, a climate risk modeling researcher at Japan’s National Institute for Environmental Studies, looked with her colleagues at three fire-vegetation models to understand how hazardous emissions changed from 1960 to 2019, compared to a hypothetical control model that excluded historical climate change data. They found that while fewer than 669 deaths in the 1960s could be attributed to climate change globally, that number ballooned to 12,566 in the 2010s — roughly a 20-fold increase. The proportion of all global PM2.5 deaths attributable to climate change jumped 10-fold over the same period, from 1.2% in the 1960s to 12.8% in the 2010s.
“It’s a timely and meaningful study that informs the public and the government about the dangers of wildfire smoke and how climate change is contributing to that,” Yiqun Ma, who researches the intersection of climate change, air pollution, and human health at the Yale School of Medicine, and who was not involved in the Nature study, told me.
The study found the highest climate change-attributable fire mortality values in South America, Australia, and Europe, where increases in heat and decreases in humidity were also the greatest. In the southern hemisphere of South America, for example, the authors wrote that fire mortalities attributable to climate change increased from a model average of 35% to 71% between the 1960s and 2010s, “coinciding with decreased relative humidity,” which dries out fire fuels. For the same reason, an increase in relative humidity lowered fire mortality in other regions, such as South Asia. North America exhibited a less dramatic leap in climate-related smoke mortalities, with climate change’s contribution around 3.6% in the 1960s, “with a notable rise in the 2010s” to 18.8%, Park told me in an email.
While that’s alarming all on its own, Ma told me there was a possibility that Park’s findings might actually be too conservative. “They assume PM2.5 from wildfire sources and from other sources” — like from cars or power plants — “have the same toxicity,” she explained. “But in fact, in recent studies, people have found PM2.5 from fire sources can be more toxic than those from an urban background.” Another reason Ma suspected the study’s numbers might be an underestimate was because the researchers focused on only six diseases that have known links to PM2.5 exposure: chronic obstructive pulmonary disease, lung cancer, coronary heart disease, type 2 diabetes, stroke, and lower respiratory infection. “According to our previous findings [at the Yale School of Medicine], other diseases can also be influenced by wildfire smoke, such as mental disorders, depression, and anxiety, and they did not consider that part,” she told me.
Minghao Qiu, an assistant professor at Stony Brook University and one of the country’s leading researchers on wildfire smoke exposure and climate change, generally agreed with Park’s findings, but cautioned that there is “a lot of uncertainty in the underlying numbers” in part because, intrinsically, wildfire smoke exposure is such a complicated thing to try to put firm numbers to. “It’s so difficult to model how climate influences wildfire because wildfire is such an idiosyncratic process and it’s so random, ” he told me, adding, “In general, models are not great in terms of capturing wildfire.”
Despite their few reservations, both Qiu and Ma emphasized the importance of studies like Park’s. “There are no really good solutions” to reduce wildfire PM2.5 exposure. You can’t just “put a filter on a stack” as you (sort of) can with power plant emissions, Qiu pointed out.
Even prescribed fires, often touted as an important wildfire mitigation technique, still produce smoke. Park’s team acknowledged that a whole suite of options would be needed to minimize future wildfire deaths, ranging from fire-resilient forest and urban planning to PM2.5 treatment advances in hospitals. And, of course, there is addressing the root cause of the increased mortality to begin with: our warming climate.
“To respond to these long-term changes,” Park told me, “it is crucial to gradually modify our system.”
On the COP16 biodiversity summit, Big Oil’s big plan, and sea level rise
Current conditions: Record rainfall triggered flooding in Roswell, New Mexico, that killed at least two people • Storm Ashley unleashed 80 mph winds across parts of the U.K. • A wildfire that broke out near Oakland, California, on Friday is now 85% contained.
Forecasters hadn’t expected Hurricane Oscar to develop into a hurricane at all, let alone in just 12 hours. But it did. The Category 1 storm made landfall in Cuba on Sunday, hours after passing over the Bahamas, bringing intense rain and strong winds. Up to a foot of rainfall was expected. Oscar struck while Cuba was struggling to recover from a large blackout that has left millions without power for four days. A second system, Tropical Storm Nadine, made landfall in Belize on Saturday with 60 mph winds and then quickly weakened. Both Oscar and Nadine developed in the Atlantic on the same day.
Hurricane OscarAccuWeather
The COP16 biodiversity summit starts today in Cali, Colombia. Diplomats from 190 countries will try to come up with a plan to halt global biodiversity loss, aiming to protect 30% of land and sea areas and restore 30% of degraded ecosystems by 2030. Discussions will revolve around how to monitor nature degradation, hold countries accountable for their protection pledges, and pay for biodiversity efforts. There will also be a big push to get many more countries to publish national biodiversity strategies. “This COP is a test of how serious countries are about upholding their international commitments to stop the rapid loss of biodiversity,” said Crystal Davis, Global Director of Food, Land, and Water at the World Resources Institute. “The world has no shot at doing so without richer countries providing more financial support to developing countries — which contain most of the world’s biodiversity.”
A prominent group of oil and gas producers has developed a plan to roll back environmental rules put in place by President Biden, The Washington Post reported. The paper got its hands on confidential documents from the American Exploration and Production Council (AXPC), which represents some 30 producers. The documents include draft executive orders promoting fossil fuel production for a newly-elected President Trump to sign if he takes the White House in November, as well as a roadmap for dismantling many policies aimed at getting oil and gas producers to disclose and curb emissions. AXPC’s members, including ExxonMobil, ConocoPhillips, and Hess, account for about half of the oil and gas produced in the U.S., the Post reported.
A new report from the energy think tank Ember looks at how the uptake of electric vehicles and heat pumps in the U.K. is affecting oil and gas consumption. It found that last year the country had 1.5 million EVs on the road, and 430,000 residential heat pumps in homes, and the reduction in fossil fuel use due to the growth of these technologies was equivalent to 14 million barrels of oil, or about what the U.K. imports over a two-week span. This reduction effect will be even stronger as more and more EVs and heat pumps are powered by clean energy. The report also found that even though power demand is expected to rise, efficiency gains from electrification and decarbonization will make up for this, leading to an overall decline in energy use and fossil fuel consumption.
Ember
The world’s sea levels are projected to rise by more than 6 inches on average over the next 30 years if current trends continue, according to a new study published in the journal Nature. “Such rates would represent an evolving challenge for adaptation efforts,” the authors wrote. By examining satellite data, the researchers found that sea levels have risen by about .4 inches since 1993, and that they’re rising faster now than they were then. In 1993 the seas were rising by about .08 inches per year, and last year they were rising at .17 inches per year. These are averages, of course, and some areas are seeing much more extreme changes. For example, areas around Miami, Florida, have already seen sea levels rise by 6 inches over the last 31 years.
“As the climate crisis grows more urgent, restoring faith in government will be more important than ever.” –Paul Waldman writing for Heatmap about the profound implications of America becoming a low-trust society.
That means big, bad things for disaster relief — and for climate policy in general.
When Hurricanes Helene and Milton swept through the Southeast, small-government conservatives demanded fast and effective government service, in the form of relief operations organized by the Federal Emergency Management Agency. Yet even as the agency was scrambling to meet the need, it found itself targeted by far-right militias, who prevented it from doing its job because they had been led by cynical politicians to believe it wasn't doing its job.
It’s almost a law of nature, or at least of politics, that when government does its job, few people notice — only when it screws up does everyone pay attention. While this is nothing new in itself, it has increasingly profound implications for the future of government-driven climate action. While that action comes in many forms and can be sold to the public in many ways, it depends on people having faith that when government steps in — whether to create new regulations, invest in new technologies, or provide benefits for climate-friendly choices — it knows what it’s doing and can accomplish its goals.
As the climate crisis grows more urgent, restoring faith in government will be more important than ever. Unfortunately, simply doing the right things — like responding competently to disasters — won’t be enough to convince people that the next climate initiative will do what it’s supposed to.
The number of people expressing faith in government today is nearly as low as it has been in the half-century pollsters have been asking the question. That trust has bounced up and down a bit — it rose after September 11, then fell again during the disastrous Iraq War — but for the last decade and half, only around 20% of Americans say they trust the government most of the time.
It’s partisan, of course: People express more trust when their party controls the White House. And the decline of trust reaches beyond the government. Faith in most of the key institutions of American life — business, education, religion, news media — has fallen in recent decades, sometimes for good reason. The net result is a public skeptical that those in authority have the ability to solve complex problems.
Changing that perspective is extraordinarily difficult, often because of the nature of good and bad news: The former usually happens slowly and invisibly, while the latter often happens dramatically and all at once.
Take the program created in the Energy Department under George W. Bush to provide loans to innovative energy technologies. If most Americans had heard of it, it was because of one company: Solyndra, a manufacturer of innovative but overly expensive solar panels. Undercut by a decline in prices of traditional panels, the company went under, and its $535 million loan was never repaid. Republicans made Solyndra’s failure into a major controversy, claiming that the program showed that government investment in green technology was corrupt, ineffective, and wasteful.
What few people heard about was that the loan program overall not only turned a profit at the time (and for what it’s worth, it still does), it also provided help to many successful companies, even if a few failed — as any venture capital investor could tell you is inevitable. The successes included Tesla, which used its federal loan to ramp up production of the sedans that would turn it from a niche manufacturer of electric roadsters into what it is today. Needless to say, Elon Musk does not advertise the fact that his success was built on government help.
More recently, the hurricane response has shown how partisan polarization can be used to undermine trust in government — especially when Donald Trump is involved. Trump took the opportunity of the hurricanes to accuse the federal government of being both political and partisan, delivering help only to those areas that vote for Democrats. Soon after, he promised to do precisely what he falsely accused the Biden administration of doing, saying that if he is president again, he will withhold disaster aid from California unless Gov. Gavin Newsom changes the state’s water policies to be more to Trump’s liking. “And we’ll say, Gavin, if you don’t do it, we’re not giving any of that fire money that we send you all the time for all the fire, forest fires that you have,” Trump said. And in fact, in his first term Trump did try to withhold disaster aid from blue states.
What sounds like hypocrisy is actually something much more pernicious. As he often does, Trump is arguing not that he is clean and his opponents are dirty, but that everyone is dirty, and it’s just a question of whether government is in the hands of our team or their team. When he says he’ll “drain the swamp,” he’s telling people both that government is corrupt, and the answer is merely to change who gets the spoils. If you believe him, you’ll have no trust in government whatsoever, even if you might think he’ll use it in a way you’ll approve of.
We’ve seen again and again that people want government to perform well and get angry when it doesn’t, but they don’t reward competence when it happens. Which is why making sure systems operate properly and problems are solved is necessary but not sufficient to win back trust. Government’s advocates — especially those who are counting on it to undertake ambitious climate action both now and in the future — need not only to deliver, they have to get better at, for lack of a better word, propaganda. Policy success is not its own advertisement. And despite his ample policy achievements, Joe Biden has not been a charismatic and effective messenger — on the role of government, or much else.
Ronald Reagan used to say that the most frightening words in the English language were “I’m from the government and I’m here to help”; the oft-repeated quip was at the center of his incredibly successful effort to delegitimize government in the eyes of voters. To reverse the decline of trust so people will believe that government has the knowledge and ability to tackle climate change, the public needs to be reminded — often and repeatedly — of what government does well.
Touting past and present successes on climate — and disaster relief, and so many other ways the government solves problems every day — is essential to building support for future climate initiatives. Those successes are all around, it’s just that most people never hear about them or take them for granted. But promoting government as an engine of positive change should be as high a priority for climate advocates, including those who hold public office, as discrediting government was for Reagan and is for Trump.