These States Want Big Oil to Pay for the Pollution They Cause — and They Have a Roadmap to Do It
As communities across the United States grapple with rising costs of protecting residents and infrastructure from the worsening impacts of climate change, some state lawmakers are targeting a potential new source of resiliency funding: fossil fuel companies.
Sometimes called “polluter pays” or “climate superfund” laws, a new wave of state legislation aims to make oil companies pay for part of the costs of adapting to and recovering from climate disasters fueled by their greenhouse gas emissions. The bills are gaining rapid momentum in statehouses: Vermont passed a law in May, another in New York is awaiting Gov. Kathy Hochul’s signature, and similar proposals are under consideration in California, Massachusetts and Maryland.
Oil and gas companies cause the majority of the world’s climate pollution, the bill’s sponsors say, and so they should help pay for the damage pollution inflicts on communities. While each state’s legislation has unique features and different mechanisms for determining how much oil and gas companies will pay, they all draw inspiration from the federal Superfund program, first enacted in 1980 and administered by the Environmental Protection Agency, which makes polluters pay to clean up. Hazardous waste thrown into the environment.
Government climate funds created under these laws would work similarly by making fossil fuel companies pay a portion of the damages caused by their greenhouse gas emissions.
“States and municipalities are experiencing enormous costs from climate change-related damages and money they must spend now to prepare for the consequences they will face in the future, at the same time as fossil fuel industry players are posting record numbers,” said Martin Luckman, a climate law fellow at the Sabin Center for Change Law. “We benefit from creating these damages,” he said, and while the superfund bills will not cover the full amount states will spend on climate adaptation, communities are “looking for whatever tools are available to them to make sure that.” “People who benefit from harm being caused pay for it.” [that] Damage.”
So how exactly do the bills work, how do they interact with the growing number of different state and local lawsuits seeking to hold big oil companies liable for climate deception, and what challenges will they face? Here’s what you need to know.
How Climate Superfund Bills Work
All currently proposed superfund bills would assess the dollar figure that companies owe to the fund based on the amount of emissions attributable to the fossil fuels they sold over a specific time period: from 2000 to 2018 in the case of New York, or from 1995 to 2018 in Vermont to 2024. for example. The costs of those emissions, or how they are distributed among companies, are calculated using attribution — a growing field It was also clicked For climate accountability claims. These calculations are based on data that companies self-submit to the Securities and Exchange Commission.
“It’s like looking at something they’ve already done and saying ‘this had a negative impact and now you have to clean up the mess you made,’” said Maggie Coulter, a senior staff attorney at the Center for Biological Diversity, a group supporting California’s recently introduced Climate Superfund bill. .It was shelved by its author.But it could be reintroduced later in the year.
Some bills direct a government agency to conduct an assessment of the costs of climate damage caused by corporate emissions over a specified period of time. In Vermont’s case, the state Natural Resources Agency will have until the beginning of 2027 to conduct that assessment and determine each company’s share of the costs.
These costs may include a portion of Estimated at $1 billion The response and recovery costs incurred after major floods devastated Vermont last summer, or the price of fortifying roads, bridges and floodplains to reduce damage from rainstorms intensified by climate change. The agency will also help determine which resiliency programs — programs that can help Vermont municipalities, businesses and farms adapt to climate impacts — will be covered.
“The law is a logical manifestation of a very well-established principle in American environmental law, which is that the polluter pays,” said Christophe Courchesne, associate professor of law and director of the Environmental Advocacy Clinic at Vermont Law School.She expressed her support“This is not new, even though applying this policy to climate damage is new, and it is a very important concept and we certainly hope it will be a model for other states.”
Other bills have already set a total cost to be split among the companies — such as a New York bill that would require big oil companies to pay into a $75 billion fund. It can be used for Projects like air conditioning schools or upgrading roads, bridges, subways and stormwater systems to accommodate more extreme weather conditions. However, that $75 billion doesn’t come close to the total costs New York faces in terms of climate adaptation; in 2021, the city estimated Just “recalibrating” would cost $100 billion[e] “Our storm sewers are like Ida.”
Supporters of the bills say their popularity reflects growing public demand for polluters to pay; Polling last yearis foundA poll by Fossil Free Media, one of the groups behind the survey, found that 70% of likely voters support making fossil fuel companies pay for climate disasters including wildfires, droughts and floods. “The science is very clear about the massive impact these companies have had on the climate crisis,” said Cassidy DePaola, communications director at Fossil Free Media, one of the groups behind the survey. “It’s time for them to pay their fair share. This is a step in the right direction, but it’s still not enough.”
“Parallel tracks are very free”
The bills come at the same time that dozens of state and local lawsuits are steadily moving forward to hold Big Oil accountable for climate fraud and damages. How do the two mechanisms interact?
The two paths have some fundamental differences and are intended to accomplish different things. Unlike bills, lawsuitsMisinformation CenterNot pollution. They accuse the companies of engaging in deceptive behavior, citing evidence that the fossil fuel industry has misled the public for decades about the harms caused by its products. These court cases aim to prevent companies from lying to consumers and hold them accountable through a range of remedies, including paying for the damages caused by their deception.
Lawsuits can also help address past misinformation by forcing defendants to set the record straight. a Minnesota lawsuit The lawsuit filed against Exxon, Koch Industries, and the American Petroleum Institute under state consumer protection laws, for example, seeks to force the companies to “disclose and publish all previously conducted research directly or indirectly…that relating to the issue of climate change,” and “funding a corrective public awareness campaign in the State of Minnesota related to the issue of climate change, administered and controlled by an independent third party.”
Similar remedies came through lawsuits brought against the tobacco industry by U.S. states and territories for misleading consumers about the link between smoking and cancer. Through the 1998 Master Settlement Agreement, Big Tobacco was forced to fund the Truth Initiative, a public education campaign.Significantly reducedSmoking rates among young people.
Discovery, the process of obtaining evidence for prosecution, can also produce internal company documents that shed more light on the industry’s deception about its products to lawmakers and the public — and can help guide the response. These documents were obtained through a lawsuit against Tobacco And Opioids industries and make them available to the public.
On the other hand, the Climate Superfund legislation “does nothing to prevent this.” [companies] “They can continue business as usual if they want to,” Coulter said. “It’s just saying that the work you did caused damage and you should pay for it.” That’s why the bills and lawsuits are “parallel and very complementary paths,” she stressed, which could make the fossil fuel industry pay for a share of its pollution and put an end to the ongoing shenanigans.
A similar dual strategy has been applied in California, where the California Childhood Lead Poisoning Prevention Act of 1991 imposed a tax on manufacturers of products containing lead to fund medical evaluations and services for children exposed to lead. In 2019, 10 cities and counties in California were still suffering from lead poisoning.able to recoverLead paint manufacturers settle lawsuit after companies sued for public nuisance claims.
“This is how our democracy works,” California Attorney General Rob Bonta said recently.Politico saidAsked about the connection between California’s proposed superfund bill and the impeachment lawsuit his office filed against Big Oil last year, he said, “Different elected leaders are thinking about what authority they have, what jurisdiction they have, and what action they can take to address a problem that affects their constituents.”
Legal battles ahead
The bills are likely to implicate many of the same big oil companies facing climate fraud lawsuits in state courts, including Exxon, Chevron, Shell and BP. The industry’s leading trade association, the American Petroleum Institute, has voiced strong opposition to the bills, calling them “new punitive tariffs” that “represent another step in a concerted campaign to undermine America’s energy advantage and the economic and national security benefits it provides.”
Legal experts expect APIs and other organizations to challenge the laws in court.
In March, APII sent a messageTo Vermont lawmakers who claim the state bill “retroactively imposes costs and liability on past activities that were legal” and “violates equal protection and due process rights by holding corporations responsible for the actions of society as a whole.”
But experts and environmental advocates refute these claims. “This bill is based on a well-established and reasonable approach to determining liability for pollution damages,” says Korshin of Vermont Law School. “These issues of due process and retroactive liability have been litigated and upheld.”
Big Oil’s public communications sought this outblamingFor climate change for consumersFor years,Despite mounting evidence that companiesintentionally misleadingThe public about the harm caused by fossil fuel products.
Although the Superfund bills don’t rely on evidence of fraud as lawsuits do, there is ample precedent for laws that hold producers liable for the pollution they cause, Lockman said. “If you buy a product, and the manufacturer of that product dumps toxic chemicals into a river and kills species, is the consumer liable for that?” he asked. “Generally, we have decided as a society and as a legal system that it’s acceptable to hold the most direct actors liable for the pollution they cause.”
Emily Sanders is the editor-in-chief of the Center for Climate Integrity. Follow her. here.
This piece was originally published on Exxon Newsa project with the Center for Climate Safety.
