To Nobody's Surprise, Vermont Being Sued Over Its "Climate Superfund" Law

People watch the raging Winooski River rip past
buildings during catastrophic flooding in Vermont
on July 11, 2023. Business groups are suing
Vermont over its "climate superfund" law, which 
seeks to make fossil fuel entities help pay for
damages from climate-related floods like this one. 

 Lawyers are gearing up in Vermont as business groups fight back against a first of its kind "climate superfund" law.  

According to the Associated Press:

"The U.S. Chamber of Commerce and a top oil and gas industry trade group are suing Vermont over its new law requiring that fossil fuel companies pay a share of the damage caused over several decades by climate change. 

The lawsuit argues the U.S. Constitution precluded the act and that the state law is preempted by the federal Clean Air Act. It also argues that the law violates domestic and foreign commerce clauses by discriminating 'against the important interest of other states by targeting large energy companies located outside of Vermont."

The lawsuit is no surprise and the legal arguments are along the lines of what experts predicted when the law was passed last year. 

The lawsuit, reports the AP, also says that the federal government is already addressing climate change. I guess the argument is, "Why is Vermont sticking its nose in the issue?" Mostly, I think, because federal efforts to combat climate change are inadequate, at least in the opinion of some activists and scientists. 

The lawsuit also argues that greenhouse gases come from billions of individual sources so it's impossible to "accurately and fairly" measure the impact emissions from a particularly company in a specific location over decades.

To me, that argument is sort of as if some dude who bought gas in someplace like Idaho to fire up is Ford F-250 last year is just as much to blame for climate damage in Vermont as some fossil fuel giant like Exxon. 

Vermont's law, by the way does not target businesses that distribute fossil fuels, like gas stations and fuel dealers. It does target big fossil fuel companies, like the big oil giants. 

This Vermont statute, and lawsuit is an interesting battle between the federal government and states regarding who has control of pollution regulation, and for that matter, interstate commerce. The Chamber of Commerce and Petroleum Institute doesn't believe little old Vermont should be meddling in the global fossil fuel trade. 

More from the AP:

"'Vermont wants to impose massive retroactive penalties going back 30 years for lawful, out-of-state conduct that was regulated by Congress under the Clean Air Act,' said Tara Morrissey, senior vice president and deputy chief counsel of the Chamber's litigation center. 'That is unlawful and violates the structure of the U.S Constitution - one state can't try to regulate a global issue best left to the federal government.'"

The interesting question this raises is what is a state or even local government to do when they believe federal laws and regulation are not adequately protecting them.  

So far, lawsuits and threats of lawsuits have not dissuaded other states from considering enacting version's of Vermont's "climate superfund" law. As noted here just week, New York Gov, Kathy Hochul recently signed into law that state's version of this type of legislation, despite threats of lawsuits from the fossil fuel industry. 

Other states are considering these types of laws, too. 

Vermont passed this law less than a year after repeated floods in the summer of 2023 caused widespread, at times catastrophic damage across the state. Renewed, severe floods hit the Green Mountain State months after the legislation was adopted.

Scientists keep saying climate change is making many rain storms more intense, which leads to more intense and more frequent flooding. 

Anthony Iarrapino of the Conservation Law Foundation told the AP the fossil fuel industry is "trying to avoid accountability for the damage their products have caused in Vermont and beyond."

As New England Public Media reports, the Vermont law is modeled after the federal Superfund program.  It allows the state attorney general to seek payment from fossil fuel companies for a share of what climate change has cost Vermonters since the 1990s. 

I'll be first to admit it would be hard to tease out the proportion of last summer's flood, for instance that was created by climate change and which flood damage would have happened anyway. 

But not impossible. There's the growing field of attribution science, which use computer models, data  and other resources to assess to what extent a particular event was influence by climate change. 

I mentioned attribution science in another piece in this here blog thingy over the weekend, in which the World Weather Attribution concluded many of the world's deadliest weather disaster of of 2024 were made worse by climate change. 

Vermont hasn't finished tallying the damages from climate change and hasn't yet figured out how much to bill the fossil fuel companies.

Which, according to New England Public Media, is making legal scholars wonder if the Chamber and fossil fuel industry jumped the gun with their lawsuit against Vermont. The fossil fuel interests don't yet know how much Vermont wants to bill them, because Vermont itself hasn't figured that out yet. 

Then again, given that other states are interested in this type of legislation, maybe they want to try and nip this sort of legislation in the bud.  Who knows?