California’s announcement last September that it was suing some of the biggest oil and gas companies on the planet to make them pay for climate damage and alleged deception marked a major moment in the fight for climate accountability. That fight is playing out in the courts in the US and around the globe with climate lawsuits aiming to hold corporate polluters and governments accountable for fueling the flames of a world (literally) on fire. In the US - where more than two dozen lawsuits brought by municipalities and states (including California) against Big Oil are currently pending - a parallel strategy for corporate climate accountability is emerging through state legislatures. Lawmakers in several states are considering bills that would make major fossil fuel extracting companies help foot the bill for costs of recovering from and adapting to climate impacts such as extreme flooding and catastrophic storms that are intensifying, largely due to heat-trapping emissions from fossil fuel combustion.
This proposed polluter pays legislation is modeled on federal and state programs that hold corporate polluters responsible for costs of cleaning up their chemical and hazardous waste contamination. Dubbed “climate superfund” bills, the idea is to apply the legal standard of strict liability found in these existing Superfund laws to hold large oil and gas producers responsible for the climate pollution stemming from their products. These new proposed laws, if enacted, would be a “game changer”, Ben Edgerly Walsh, climate and energy program director at the Vermont Public Interest Research Group (VPIRG), told me, because it would be the first time in the United States and probably in anywhere in the world that fossil fuel companies would be held financially accountable for the climate crisis that they played a big part in creating. The state of Vermont has a climate superfund bill currently making its way through the legislature, and Edgerly Walsh and other proponents say it has a realistic chance of passage this legislative session. Lawmakers in New York, Massachusetts, Maryland, and most recently California have proposed similar bills. Other states are likely to join the effort as the “climate superfund” concept gains momentum, propelled by grassroots advocacy and the stark fiscal reality that states and their taxpayers are facing multi-billion-dollar climate costs as they grapple with budget shortfalls.
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The climate cost recovery legislation basically imposes a one-time fee on identified responsible parties – fossil fuel extractors or refiners responsible for more than one billion tons of greenhouse gas emissions over a specific covered period, typically over the past 20 or 30 years. Unlike a carbon tax that is forward-looking in assigning a cost to ongoing emissions, the policy is retroactive, intended to make major climate polluters pay their fair share for their attributable emissions that have already occurred. Essentially, states would be sending a bill to companies like ExxonMobil, BP, and Chevron; the companies would have a choice to pay it all at once or in installments, with the revenue deposited into a designated state fund to help pay for climate resiliency projects and other specific investments authorized by the legislation.
Initially proposed at the federal level by a handful of Senate Democrats in 2021, the legislation fizzled when the Democrats’ Build Back Better package fell through. Democratic-controlled states then started to take up the policy proposal, beginning with New York which first introduced its climate change superfund bill in 2022. Last year the New York Senate passed it, but it did not advance in the state Assembly. Another route to passage would be through inclusion in the state budget, but New York Governor Kathy Hochul left it out of her budget plan released in January. As The Lever recently reported, “As budget negotiations progressed between Hochul, the Senate, and the Assembly, whichalso signaled supportfor the proposal, the governor was silent on the bill.” The bill is now pending again in the State Senate.
In Massachusetts, a version of this polluters pay bill was introduced last year; while it did not advance, lawmakers are reevaluating the proposal. Maryland’s bill, meanwhile, has been reintroduced this year under a new name, the Responding to Emergency Needs of Extreme Weather (RENEW) Act, and is currently pending.
Vermont’s climate superfund bill, introduced in January, is quickly moving through the legislature (more on that below). And California, led by Senator Caroline Menjivar (D-San Fernando Valley), just proposed its own version of the legislation. Senate Bill 1497, the Polluter Pays Climate Cost Recovery Act, had its first committee hearing last week in the Senate Environmental Quality Committee, which swiftly advanced the bill that same day by a 5-2 favorable vote. The bill next comes before the Senate Judiciary Committee on Tuesday, April 23. If the bill passes the full Senate, it would then need to pass the Assembly by the end of the summer.
“SB 1497 is a chance to show California is a true environmental leader by holding these polluters accountable for damage they’ve done to our climate and to our health,” Hollin Kretzmann, a senior attorney with the Center for Biological Diversity, told me. “In California we’re no strangers to climate disasters. We’ve been through severe droughts and fires and heatwaves just in the last decade, and those are going to get worse, so we need real accountability from the oil and gas companies that are responsible for this.”
As these bills seeking to make Big Oil pay for climate costs move forward, here are five things to know:
Vermont appears to be on the verge of passing this into law
As a close observer of Vermont’s climate superfund bill (S. 259) through the legislature over the past few months, I can say that the bill has a lot of momentum and broad (and even bipartisan) legislative support. It recently passed the full Senate with an overwhelmingly favorable 26-3 vote on the third reading on April 2, and it now is making its way through the House where it also seems to have strong support. Upon introduction in January the bill already had 87 House co-sponsors (out of 150 total House members). These numbers suggest that the bill could overcome a potential veto from Vermont’s Republican Governor Phil Scott.
“In the last few years we’ve had incredibly devastating floods, and the financial impact to the state is significant. I think there’s a lot of political will here now to make responsible parties pay for those damages,” Jennifer Rushlow, dean of the Maverick Llyod School for the Environment at Vermont Law and Graduate School, told me.
Vermont suffered its worst flooding event in nearly a century last July when heavy rains dumped two months’ worth of precipitation over two days, inundating the state capital of Montpelier and damaging communities across the state. Community farms and small businesses in river floodplains were devastated; Intervale Community Farm, which grows mixed vegetables on 22 acres in Burlington, saw 99 percent of its land flooded, wiping out about $200,000 worth of crops.
“The tobacco industry knew the risks of smoking. The pharmaceutical industry knew the risks presented by opioid addiction. The chemical industry recognized damages from PFAS and PCBs. And they have to a small degree been forced to contribute towards fixing some of what their denials and actions wrought. The oil companies, we’re learning, knew decades ago about the central role their products played in changing the climate. They too should help shoulder the costs of fixing the problems that they have exacerbated through their deception,” Andy Jones, farm manager at Intervale, said in his testimony to the Vermont Senate Judiciary Committee in February.
Anthony Iarrapino, a Vermont-based lawyer and lobbyist working with Conservation Law Foundation, told me the odds look good for Vermont to become the first state in the nation to enact this legislation to make Big Oil pay for climate costs.
“Given that we have had such resounding support in the Senate and have such strong support in the House and still time in the session I do think we will, as we have before in Vermont, end up being a leader when it comes to an important climate issue like this,” he said.
If enacted, it would be historic. As a March letter of support from faculty leaders of environmental law clinics at Vermont Law and Yale Law School explains: “S.259 would, for the first time in the United States and arguably anywhere on the planet, unmistakably establish the responsibility of fossil fuel companies to help cover the monetary costs of adapting to the harmful impacts of climate change.”
Determining responsible parties for climate damage is possible
A rapidly advancing research field called climate attribution science provides critical data to support climate accountability efforts, as it can not only determine the extent to which certain extreme weather disasters were enhanced by climate change (called event attribution), but also can attribute historical carbon pollution to specific industrial sectors and corporate entities at the base of the hydrocarbon supply chain (called source attribution). Groundbreaking “Carbon Majors” research pioneered by Richard Heede a decade ago found that nearly two-thirds of CO2 emitted since the start of the Industrial Revolution traces back to 90 large fossil fuel and cement manufacturers. As Carroll Muffett, president of the Center for International Environmental Law, said in a recent statement accompanying an updated Carbon Majors database and report, Heede’s research “transformed the landscape of climate accountability by using the fossil fuel industry's own reported production and operation figures to calculate and expose the true scale of its role in the climate crisis.” The updated report finds that a vast majority – 80% - of fossil fuel-based CO2 emissions since 2016 can be traced back to just 57 companies.
Heede has recently testified on his methodology before Vermont legislative committees, as has climate researcher Justin Mankin, a professor of geography at Dartmouth College who works on climate attribution assessments. As Mankin told Vermont lawmakers, scientists can quantify damages from carbon emissions and attribute them to particular parties.
There is widespread public support for this kind of legislation
Polling results released in December by progressive groups Data for Progress and Fossil Free Media show generally wide support among likely voters for a bill that would make big oil and gas producers pay a share of the climate costs stemming carbon pollution. About two-thirds of voters overall indicated some level of support for the idea; by political party affiliation, the results find support among 88% of Democrats, 61% of Independents, and 46% of Republicans.
Proponents of the proposals in Vermont and California say they are seeing broad public backing. “It’s a hugely popular bill,” Kretzmann said of California’s Senate Bill 1497.
“Vermont’s citizen legislature, combined with the fact that Vermont is just coming off a year in which the effects of climate change have become so obvious and so devastating and have touched every community and every industry in the state, I think we have some momentum here,” Iarrapino told me of Vermont’s bill.
The legislation is a complimentary approach to climate litigation against Big Oil
Advocates of these bills say that they in no way preclude or interfere with other potential legal remedies states might pursue to recover climate costs or otherwise hold fossil fuel companies accountable for alleged wrongdoing. Vermont and California both have pending climate accountability lawsuits targeting major oil and gas companies, and the proposed legislation in both states has specific language explaining that those types of actions are not diminished or superseded by the legislation.
“This bill is based on strict liability. It is separate from and complimentary to the various landmark lawsuits brought to hold fossil fuel polluters accountable for their wrongdoing,” Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity, said at a press conference last week on the California bill.
As Iarrapino explained to me, Vermont’s lawsuit against Big Oil is about addressing alleged deceptive practices and assessing statutory penalties (under the state’s consumer protection law). It does not seek to recover damage costs. Vermont’s climate superfund bill, by contrast, is a cost recovery mechanism. “They are aiming at some similar responsible parties, but they’re very different legal theories and they’re based on different [legal] authorities,” he said.
While the climate litigation strategy generally seeks to establish liability under consumer protection statutes or various tort legal theories such as negligence, failure to warn, and nuisance, the legislative strategy simply imposes strict liability on qualified fossil fuel producers. Strict liability, as Vermont legislative counsel Michael O’Grady explained in a recent committee hearing, holds parties liable regardless of fault, intent, or whether the party was negligent. In the context of environmental pollution, he said courts have upheld the strict liability standard even though the responsible parties’ products or activities were legal at the time the damage occurred. The key is demonstrating that polluters had knowledge that their behavior would foreseeably result in environmental damage. “If it was reasonably foreseeable at the time the products were sold that manufacturers knew their products would create environmental damage, they can be held liable,” O’Grady explained. “It was certainly foreseeable that these fossil fuel companies knew that the use of their products was going to create environmental impacts and damages.”
The legislation will face legal challenges from Big Oil
There is no question that upon enactment, any of these climate superfund bills will be challenged in the courts by deep-pocketed fossil fuel entities. Should Vermont become the first state to take the plunge and enact its bill this year, the state knows it will get sued and will have to defend its statute.
“Let’s be clear, I think that there will litigation that arises from enactment of this act, because it will be the first in the country act to be imposing significant liability for the damages wrought by the emissions of those fossil fuels,” O’Grady told lawmakers on the Vermont House Environment and Energy Committee.
Rushlow of Vermont Law and Graduate School told me she and other legal experts have testified that the proposal is on solid legal ground. “The arguments in favor of a law like this are strong. It’s based on a very well-established legal program, the Superfund program, in the first place.”
“It is important to understand the broad authority that the states have to protect public welfare, particularly in the absence of federal action,” Iarrapino told me. “Big Oil is responsible for putting products into the marketplace that have resulted in billions upon billions of tons of emissions that we’re already stuck with and climate disruption that we’re already bearing the costs of, and this bill is about fixing that.”
Vermont Attorney General Charity Clark told the Senate Judiciary Committee in late February that she is fully on board with the legislature’s proposal and is prepared to go to battle for it: “If we are sued, I will proudly defend this bill.”
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