‘Make Polluters Pay’ Might Not Be a Feasible Climate Strategy

Good evening from New York, where a district court judge struck down a law the state passed in 2024 to extract $75 billion from fossil fuel companies to fund its response to climate change. The ruling is a sign that so-called “superfund”-style laws may not be the winning strategy many climate advocates had hoped.

You may know the New York law as the Climate Change Superfund Act, and it mirrors similarly-named legislation passed in Vermont and introduced in about a dozen other states. The law’s backers — environmental groups, consumer advocates — pitched it as a new approach after earlier attempts to sue energy companies directly for damages had either failed or were stuck in procedural arguments over whether the cases belonged in state or federal court.

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Unlike those lawsuits, the climate superfund laws don’t accuse the companies of doing anything wrong. They are modeled on the federal Superfund program, which allows the Environmental Protection Agency to request funding from companies to clean up industrial waste years after the contamination occurred, and despite the fact that the pollution was lawful at the time. The theory was that this federal precedent might give the states a leg up when energy companies inevitably fought the policy.

That comparison does not seem to have meant much to Judge Brenda Sannes. Instead, her decision focused on the similarities between the climate superfund law and a lawsuit New York City brought against Chevron and other oil companies that federal courts dismissed several years ago. Sannes concluded that just like the city’s lawsuit, the superfund law would in effect regulate interstate greenhouse gas emissions, which is a federal responsibility under the Clean Air Act.

Notably, Sannes also disregarded the Trump administration decision to rescind the 2009 endangerment finding for greenhouse gases, which underpinned the federal government’s responsibility to regulate carbon under the Clean Air Act, writing that it had “no impact” on her analysis.

To me, the idea that these climate lawsuits and superfund laws are akin to emissions regulation has been one of the more confounding aspects of covering these court fights. None of the suits concern greenhouse gas regulations in any traditional sense — they are about oil companies’ deception and responsibility for climate change-related damages. Still, several courts have agreed with oil companies that the financial penalty levied on them amounts to a form of oversight of emissions.

Climate advocates are not giving up just yet, and are urging New York Attorney General Letitia James to appeal. A press release from the group Fossil Free Media argued the ruling was “based on a deeply flawed analysis” and was “an early, appealable decision in a developing legal fight.” James has not yet issued a response.

Regardless, the superfund concept will get another test in the federal court for the district of Vermont, where the same groups challenging New York’s law — the American Petroleum Institute, the Chamber of Commerce, Republican states, and the Trump administration — are also challenging Vermont’s version.

Much more rides on an upcoming Supreme Court case, however. The high court has agreed to hear oral arguments in a lawsuit brought by Boulder County, Colorado against Exxon and a Canadian oil sands company, Suncor. The county originally filed the case in 2018, and it’s one of the ones that’s been held up for years in procedural arguments. Last year, the Colorado Supreme Court decided it could finally advance toward a trial, leading the oil companies to appeal to the federal Supreme Court. They are asking the justices to decide once and for all whether federal law preempts states from seeking relief for climate damages.

Oral arguments begin on October 5.