By: Lily Wear
New York recently passed a Climate Superfund law which allows the state to collect damages from fossil fuel companies for contributing to climate change. Following the law’s passing, over twenty other states filed a lawsuit to stop the superfund in federal court, arguing that the law violates the constitution. Several other states proposed similar laws, including Vermont who also passed their bill last year, and some speculate other states will follow. To fight the increasing threat of climate change, states like New York must introduce technologies to help mitigate and adapt to the changing climate in addition to making repairs. Climate Superfunds allow states to push the burden of mitigation, adaptation, and rebuilding on to greenhouse gas emitters. Climate Superfund laws would allow states to raise money for such measures to protect residents.
In 2024, five states (California, Massachusetts, Maryland, New York, and Vermont) legislatures’ proposed Climate Superfund bills, with only Vermont and New York successfully passing them. Climate Superfunds are modeled after the Federal Superfund, CERCLA, which allocates responsibility for hazardous waste sites and if necessary, allows the government to clean and seek damages from responsible parties. The federal statue has been successful in this model since it was enacted in the 1980’s, despite legal challenges. Vermont’s bill was introduced in response to record flooding that devasted the state last year, caused by worsening storms linked to climate change. The law seeks to protect Vermonters from the costs associated with future floods by making carbon dioxide emitters pay. New York’s bill similarly follows a “polluters pay” approach, and seeks to protect residents from increased rainfall, heatwaves, and coastal storms. The law requires fossil fuel companies to pay into a fund which will mitigate climate damage they have perpetuated.
“Climate Resilience” will become increasingly necessary, especially for regions like New York, which face extreme storms each year. The term encompasses the idea that communities must work on ways to cope with the climate crisis through mitigation and adaptation. The fund will allow the state to implement forthcoming technologies that mitigate climate impacts and adapt communities to weather natural disasters. Climate adaptation technologies, such as green roofs, help cities to decrease impervious surfaces, thereby decreasing flooding. As for mitigation, governments can work to integrate green sources of energy into their energy grid to slow the effects of the crisis. Climate Superfunds will enable governments to implement similar technologies to protect New Yorkers from natural disasters and rising tax burdens.
While these laws show promise of holding polluters accountable, states and others are raising legal questions about their power to do so. Recently, 22 states sued to block the act, arguing that the Clean Air Act preempts individual states from regulating air quality, because the federal government already has done so. The plaintiffs include states like West Virginia, whose major industry is coal, and Texas which is a major producer of oil. The states additionally argue that the law could harm its economy, affecting interstate commerce, and potentially lead to an energy crisis. In addition to industry influence, states may be facing political pressure from the Trump Administration to block Climate Superfund bills or other measures that place a burden on the fossil fuel industry. While lawsuits may be financially and politically motivated, they raise valid arguments of federal preemption and dormant commerce clause issues with the New York law. These arguments suggest that a state government could be overstepping its authority by usurping the federal government’s role or burdening interstate commerce, which the U.S. Constitution does not allow.
Federal courts will decide the legitimacy of New York’s power to enact the Climate Superfund bill. Whether a constitutional exercise of power or not, Climate Superfunds are a promising model to protect residents from negative impacts of climate change, while making those primarily responsible pay for the damages. If found unconstitutional for states to implement, it is unlikely that a similar bill would pass federally, given Trump’s anti climate regulation stance and pro industry message, which includes threats of mass EPA layoffs. Without such legislation, U.S. residents will be left to bear the heavy burden of protecting themselves from incoming natural disasters, and the financial burden of rebuilding afterwards. Communities must become resilient to these threats using improving technologies that shield cities from overwhelming damage.
Student Bio: Lily is a second-year law student at Suffolk University Law School and a staff member for the Journal of High Technology Law. Lily Received a Bachelor of the Arts Degree in Environmental Science from Trinity College, Connecticut in 2022.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
