A Climate Superfund Law Might Be Crazy Enough to Work

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?”