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? 

Environmental Group Sues State Of Vermont Over Greenhouse Emissions

The Conservation Law Foundation is suing Vermont
over its greenhouse emissions targets.

 An issue as wide ranging and ever present as climate change inevitably leads to one staple of American life: The lawsuit.  

Such as it is in Green Mountain State, where last week the environmental group Conservation Law Foundation last week sued Vermont because they said the state isn't doing enough to reduce carbon emissions. 

According to Seven Days: 

"The Conservation Law Foundation accuses the Agency of Natural Resources of not taking the steps necessary to ensure that Vermont is on track to reduce its greenhouse gas emissions as required under the state's 2020 Global Warming Solutions Act."

Basically, the CLF doesn't really believe Vermont Natural Resources Secretary Julie Moore, who says the state is likely to meet its 2025 emissions target, which is 26 percent below the 2005 level.

Seven Days goes on to explain:

"The environmental group argues that this claim is based on modeling that is 'technically and mathematically insufficient.' Honest modeling 'shows that Vermont is not, and by a significant margin, on track to achieve the 2025 Reduction Requirement, the group claimed it its sued, filed on Tuesday in Washington County Superior Court."

CLF announced its intent to sue back in July, but the state didn't participate in settlement discussions. 

As is always the case when there's lawsuits, the state's response was terse. "We received notice of CLF's lawsuit and will review it. We intend to defend the Agency of Natural Resources," said Vermont Attorney General Charity Clark in a statement released shortly after the suit was announced.

The lawsuit by CLF says that Vermont should increase rules and incentives for people to install heat pumps and buy electric vehicles.

As it stands now, Vermont does have rules that require an increasing share of new cars and light trucks sold in Vermont need to be electric. By 2035 all new vehicles of this type must be EVs. 

Even Moore agrees that Vermont won't hit its 2030 targets for emissions reductions, with the regulations now in place. One tricky thing:  A LOT of Vermont homes are heated by fuel oil or wood, both of which of course release greenhouse gases. So how do you fix that?

That topic looks like it will come up in the next Vermont legislative session, which starts in January. 

Vermont - and pretty much everybody - should probably get used to climate related lawsuits, as I imagine they will be a dime a dozen. If they aren't already.

The big Vermont lawsuits will probably come as a result of a new law enacted this past spring. It's a climate "superfund" law. The first in the nation law would make fossil fuel and other industries pay for climate-related disasters that are costing the state Big Bucks.

The fossil fuel industry and others are guaranteed to sue to try and stop the law, lest other states follow suit. (Other states ARE looking at similar legislation).

If your career goal is to be an environmental lawyer, you're going to have a busy life.  

Followup: Climate Scientist Michael Mann Wins Defamation Case

Mark Steyn (pictured here) and Rand Simberg
lost a lawsuit brought by climatologist
Michael Mann, who contended the pair
defamed him in inflammatory blog posts. 

A followup for you from a post I made last month about climatologist Michael Mann's defamation lawsuit against climate deniers he said defamed him.   

Last week, a jury agreed. 

Reports the Washington Post: 

"A jury in a civil trial in Washington on Thursday found that the two writers, Rand Simberg and Mark Steyn, defamed and injured the researcher in a pair of blog posts published in 2012, and awarded him more than $1 million. 

'I hope this verdict sends a message that falsely attacking climate scientists is not protected speech,; Mann said in a statement.

The jury awarded Mann $1,000 from Simberg and $1 million from Steyn in punitive damages, meant to punish wrongdoing. And it granted Mann $1 for compensatory damaged from each writer for Mann's actual losses."

The verdict comes as scientists are increasingly under attack from the far right ring and a variety of fringe, conspiracy-oriented whack jobs who are attacking not only climate science but a wide variety of subjects. 

These include vaccines, and a wide variety of other scientific facts, including - unbelievably - whether the world is flat.  

Although I think the verdict was justified  - I, and many others apparently judging from the Washington Post article -  worry about how the case might stifle free speech and open debate  

WaPo:

"Inflammatory does not equal defamatory,' Victoria Weatherford, an attorney for Simberg repeatedly told the jury during the trial.

True, but it's telling that the jury decided Simberg was for liable for comparing Mann to convicted child molester Jerry Sandusky but not for other statements he made criticizing Mann's scientific work

It sounds like the jury wisely tried to avoid stepping on potential First Amendment rights, no matter who noxious that "free speech" from Simberg might have been. I'm slightly more comfortable with inaccurate criticism of a scientist's work than I am with baselessly tying the scientist to a heinous crime. 

Mann's fellow climate activists and lawyers seemed to say the same thing.   

Michael Mann, among the world's most prominent
climatologists, was defamed in an inflammatory blog
posts and was awarded a bit more than $1 million
in a jury trial last week. 

 As Nature reports:

"It's perfectly legitimate to criticize scientific findings, but this verdict is a strong signal that individual scientists shouldn't be accused of serious misconduct without strong evidence,' says Michael Gerrard, a legal scholar at Columbia University's Sabin Center for Climate change Law in New York City."

Lyrissa Lidsky, a defamation expert at the University of Florida similarly chimed in for the Washington Post: "We normally let scientists fight it out amongst themselves to discover what the truth is....In these science cases, theres's a lot of leeway for opinion. It doesn't mean there's carte blanche to lie about another scientist"

The lying Lidsky refers to was one of the central subjects of the lawsuit. The defendants accused Mann of illicitly manipulating data to support his conclusions. Close to 10 organizations, including the federal Environmental Protection Agency and the National Science Foundation investigating Mann after the allegations.    

As I wrote last month: 

"All the organizations that investigated Mann found that his science was solid, all of his research was properly conducted, and the facts he presented in his work were indeed facts. The hockey stick was proven to be a real thing."

Despite that widely accepted legal precedents, you still gotta give Steyn credit for being, um, headstrong.  

WaPo again:

"During closing arguments, Steyn, a radio and TV personality who spoke for himself during much of the trial, said he still 'stand(s) on the truth of every word I wrote about Michael Mann, his fraudulent hockey stick and the corrupt investigation process at Penn State.'"

Mann told Nature that he hopes the win "signals the beginning of the end of the open season on scientists by ideologically motivated bad actors. And maybe, just maybe, the facts and reason still matter even in today's fraught political economy."

Given the hyperbolic state of everything from politics to social media these days, Mann ought not hold his breath. 

This whole lawsuit thing got started in 2012 and only now got to a verdict. And it's not over yet. 

Mann said he plans to appeal a 2021 D.C. Superior Court decision that held National Review and Competitive Enterprise Institute not liable for defamation even though they published the attacks by Simberg and Steyn.

 In addition, it looks Steyn will appeal the $1 million in punitive damage.

The libertarian publication Reason opined that the punitive damages are the most vulnerable part of the jury's decision.  There is Supreme Court precedence that excess punitive damages violate Due Process.  Is the $1 million in punitive damages excessive?

I have no fricken' idea. 

But it's clear the legal battle will go on.  I do think people should be held accountable for wild ad hominen  attacks that pass for "discourse" these days. 

After A Decade, A Climate Scientist's Defamation Suit Goes To Trial.

After 12 years, a defamation  lawsuit against provocateurs by
noted climatologist Michael Mann has finally gone
to trial.  Mann's detractors saying he's attacking free
speech, but bloggers being sued compared Mann to
 criminals and even child molesters.  

 Talk about a slow court proceeding!

Michael Mann, one of the world's most prominent climate scientist, is finally getting his day in court. This more than a decade after he filed suit against climate deniers he says defamed him. 

According to Scripps News Service:

"A renowned climate scientist filed a lawsuit against a right-wing blogger and an analyst for defamation, and after more than a decade, the trial begin on Thursday. 

Michael Mann, an earth and environmental scientist from the University of Pennsylvania, filed the 2012 court case, claiming that online attacks on his work constituted defamation."

The long running case is important because it could set parameters as to how far people and activists can go in attempting to take down a perceived enemy.  I'm very nearly a First Amendment absolutist, but I still think there needs to be limits on how badly one can lie about and attack someone.

Mann is suing Rand Simberg, an analyst at the Competitive Enterprise Institute mainly because he published a blog post comparing Man to a convicted child molester. Mann is also suing Mark Steyn, who fawningly quoted Simberg and said Mann's research was, quote, "fraudulent."

It's interesting that if you look up that blog post now, there's a disclaimer at the bottom saying "Two inappropriate sentences that originally appeared in this post have been removed by the editor."

Hmmm. 

I worry if Mann loses, the type of baseless attacks you see on social media all the time will get even worse. There's already death threats galore out there, mostly by hard right winters who wilt when somebody says something, um, factual. 

Mann's suit might have a chilling effect on those that stalk, harass, threaten and all that. But unlike critics of his legal moves, I seriously doubt it will chill real journalism in the process. 

I regard Mann as Mr. Hockey Stick for his clear, relatable explanation of world temperature trends and how climate change influenced those trends.

Way back in 1998, Mann famously plotted in a graph that showed that global temperatures remained essentially flat for the past millennium before spiking upward dramatically after 1900. His graph looks like a hockey stick with its blade upturned. 

This easy to understand graph was featured prominently in widely read and watched publications, and thus he greatly helped galvanize the public's understanding of climate change. 

Right wing climate deniers were having none of this.They screeched and yelled that global warming is a hoax and they accused Mann of illicitly manipulating data to support his conclusions.  In short, they said Mann's hockey stick was one great big fake. 

Those allegations prompted an investigation of Mann and his science by the federal Environmental Protection Agency, the National Science Foundation and seven other organizations.

When you have that many powerful groups investigating you, that could leave the public wondering if you're on the up and up. 

All the organizations that investigated Mann found that his science was solid, all of his research was properly conducted, and the facts he presented in his work were indeed facts. The hockey stick was proven to be a real thing. 

While all this was going on, groups widely believed to be backed by billionaire Charles Koch repeatedly bombarded Mann with freedom on information demands, probably in an effort to interfere with his work and/or discourage him from publishing more papers. 

The deniers were also probably pretty mad that in 2007, Mann, and with Al Gore and people with the Intergovernmental Panel on Climate Change, won the Nobel Peace Prize for establishing a consensus on the link between what us humans do and global warming. 

With the braying climate deniers still besmirching his reputation, it was Mann's turn to get pissed. As Scripps describes it:

"After his investigation included, Mann filed a lawsuit against the two organizations and two authors for defamation and intentional infliction of emotional distress."

The Competitive Enterprise Institute and the National Review publishes the right wing bloggers' attacks. But in 2021 courts ruled the CEI and National Review would be dropped from Mann's lawsuit because the bloggers were not employees of the two organizations.  

Still the people over at the National Review are still really peeved at Mann, apparently. 

The National Review had a pretty, um, rich take on the whole mess earlier this month. They're calling it "Michael Mann vs. Journalism" as if the people constantly harassing the scientists and repeatedly making false accusations were intrepid journalists from the New York Times or something. 

This quote from the National Review piece criticizing Mann's lawsuit really got my blood boiling:

"Are Americans able to disagree about hotly contested political topics without being harassed, dragged into court on the most specious of pretexts and subjected to ruinous legal fees?"

Why, yes! Yes they are! Or at leas they should be. I hardly think thousands of frivolous Freedom of Information Requests, demonstrably false accusations .... are Americans high-mindedly "disagreeing about hotly contested political topics."

After all, with all the peer reviews and such, the people Mann is suing knew, or should have known, that Mann did not falsify his research. So there's one of Mann's plausible arguments that he was defamed. Not to mention that comparison to a serial child molester. 

Funny how the extreme right wing, whenever they encounter someone politically they don't like, get the vapors and start accusing people of sexual assault and deviance.  

Sure, I'd be annoyed with Mann to say the least if he sued journalists or others for merely asking challenging questions about his work.  That comes with the territory. 

The National Review is correct in stating that First Amendment case law allows people to make vehement and caustic statements and arguments without fear of a successful lawsuit against them. But does the First Amendment allow making knowingly false statements about somebody, especially if those false statements are designed to wreck a person's reputation?

I'm not sure why it's taken so long for Mann's suit to go to trial. I mean, 12 years is a long time, even by the standards of an often slow justice system we have these days. 

I do hope Mann wins. Sure, we have the right to criticize whoever we want. Simberg could have made his case against Mann vehemently and aggressively even though he was wrong. But he took the schoolyard bully approach by resorting to false accusation of heinous crimes.   .

That's definitely a bridge too far.  

 

Wild, Important Climate Change Court Ruling From Montana, Of All Places

A successful climate lawsuit in Montana has legal experts
expecting more litigation to enforce climate change policies.

 Here's a new one. A good one, actually. From ultra-conservative Montana!

Here's the story, from the Washington Post:  

"In the first ruling of its kind nationwide, a Montana state court decided Monday in favor of young people who alleged the state violated their rights to a 'clean and healthful environment' by promoting the use of fossil fuels.

The court determined that a provision in the Montana Environmental Policy Act has harmed the state's environment and the young plaintiffs by preventing Montana from considering the climate impacts of energy projects. The provision is accordingly unconstitutional, the court said. 

The sweeping win, one of the strongest decisions on climate change ever issued by a court, could energize the environmental movement and usher in a wave of cases aimed at advancing action on climate change, experts say."

The case involved 16 Montanan youths, ages five to 22.  It was the first constitutional and first youth-led climate lawsuit to go to trial, says WaPo. 

Youth-led climate lawsuits have really become a thing around the world, but it's been hard to get one of these off the ground in the United States.  Fourteen such  cases have been dismissed in the U.S., WaPo reports. 

Of course, this isn't the end of the Montana case.   It will be appealed to the state Supreme Court.  A spokesperson for the Montana Attorney General said the ruling was "absurd"  and Montanans can't be blamed for causing climate change. 

It's absolutely true that Montana contributed an exceedingly small share to climate change.  This case alone will not "solve" climate change. But Montana does contribute a tiny bit to our altered climate. After all, Montana is a major coal producer and has a lot of coal in the ground yet that can be mined or otherwise recovered for use as a fossil fuel. 

Rikki Held, whose name is on the lawsuit said, "I know that climate change is a global issue, but Montana has to take responsibility for our part in that."

This case does have a better chance than others because of the Montana Constitution. That constitution has the phrase that the state's residents have a right to that "clean and healthful environment."

Youths who brought the suit hammered at that wording in their litigation and testimony. A 15-year old with asthma described being a prisoner in  her own home home when wildfire smoke blanketed the state. (Does that sound familiar? Seems wildfire smoke has been a problem everywhere these days, including here in "clean" Vermont).

The practical effect of the Montana ruling involves a law that blocks the state from considering emissions and climate change when considering whether to approve energy projects. That type of law applies in a number of conservative oil, gas and coal producing states. 

You'd better believe Montana Republicans and the state's petroleum and coal industry will be fighting hard for an appeal to this court ruling.  An industry spokesperson told the Washington Post that it will be hard to approve coal and oil projects and those approved would be subject to time-consuming and costly litigation. 

 "'If this decision stands, it will cause great economic harm to the state of Montana," said Alan Olson, the executive director of the Montana Petroleum Association.'"

Still, it's definitely possible the Montana Supreme Court will uphold the ruling, despite the appeals and opposition from the fossil fuel industry.

According to the Montana Free Press/Flathead Beacon: 

"Speculating about what the Montana Supreme Court might do on appeal, retired Supreme Court Justice  Jim Nelson called the case a 'slam dunk home run' and said he expects the state's highest court will have a difficult time overturning the decision.

'I think this is one of the most powerful decisions I've ever read on the environment in Montana,' said Nelson, who said on the state Supreme Court for nearly two decades."

Even though other states don't have the "clean and healthful environment" language in their constitutions, the Montana case will probably open the door to other climate lawsuits in other states. Lawyers and activists are surely combing state laws and constitutions nationwide to support their causes. 

This opens yet another front in the battle for real climate change action.  Some of it is coming from just the free market that so many Republicans tout. After all, companies that promote and create means of renewable energy are making money hand over fist, and hiring, in large part because the demand is there. 

Some local and state governments, and to an extent federal agencies are beginning to take climate change more seriously, as voters are increasingly demanding it. At least in some corners of the nation and world. 

And for those that are clinging to the fossil fuel past, expect more litigation like this.