Superfund Climate Acts Under Threat: Implications for States
Written by Emily Karwacki and Professor Kirt Mayland

What is a Climate Superfund Act?

Vermont made history in 2024 when it enacted the first of its kind Climate Superfund Act (the Vermont Act).[1] New York quickly followed suit (the New York Act; together with the Vermont Act, the “Acts”).[2] The Acts draw inspiration from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) passed by Congress in 1980.[3] CERCLA, sometimes known as the Superfund law, requires entities (referred to as potentially responsible parties) that own or owned contaminated facilities or sites, or generated, disposed, treated, or transported hazardous wastes to pay to clean up the resulting contamination. To some extent, the Acts treat greenhouse gasses (GHGs)[4] emitted into the atmosphere as one large spill of hazardous waste. CERCLA holds such parties strictly, and jointly and severally liable, sometimes retroactively.[5] The Acts similarly operate under strict liability[6] theories, potentially avoiding some of the attribution complications in some of the past and current climate change litigation.[7] The Acts hold responsible parties liable for the cost of the damage their emissions have caused to the states generally and impose a fee on the responsible parties to be put into a “climate superfund” to be used for various adaptation projects.[8]

Frameworks like this are commonly referred to as Polluter Pays.[9] Essentially, the Polluter Pays principle, means that “the polluter should be charged with the cost of whatever pollution prevention and control measures are determined by the public authorities, whether preventive measures, restoration, or a combination of both.”[10] While the principle does not necessarily mandate bringing pollution levels down, it does not exclude that option but leaves the judgement of what an acceptable state of the environment is to public authorities.[11]

The Vermont Act requires responsible parties, defined as entities or successors in interest who extracted or refined fossil fuels, to pay for the damages from their past actions. The fines go towards climate change adaptation in Vermont with no monetary cap.[12] The Vermont Act limits responsibility to those parties that emitted more than one billion metric tons of covered GHG emissions to the atmosphere from the period of 1995–2025,[13] equivalent to approximately 33 million metric tons of GHG emissions per year. The New York Act defines responsible parties similarly and requires such entities to pay for the state’s climate change adaptation costs for damage to the state attributed to their emissions but is for the period running from 2000 to 2024 and sets a monetary cap of $75 billion.[14]

The Acts both have the purpose of requiring responsible parties to pay for the damage their products have caused under strict liability.[15] The Acts will use the funds gathered to pay for climate adaptation projects.[16] While it will take years to determine adaptation costs and responsible party apportionment under the Vermont Act, the New York Act sets a limit on such costs and prioritizes faster distribution of money to the state for adaptation projects. Such projects could include nature-based solutions such as maintaining floodplains and natural riverine corridors, as well as engineered solutions such as upgrading roads, bridges, stormwater drainages, and the electrical grid, or for residents’ medical care for climate-related illness or injury.[17] Importantly, neither Act attempts to make sweeping efforts to mitigate or regulate the future emission of GHGs from activities of responsible parties or restrict fossil fuel use or extraction.[18]

Why are Vermont and New York’s Climate Superfund Acts being Challenged?

The American Petroleum Institute (the “API”) and the United States Chamber of Commerce (the “Chamber”), potentially prematurely, sued the state of Vermont in late 2024 in the District Court of Vermont challenging the Vermont Act.[19] A coalition of 24 states intervened in the litigation in May of 2025.[20] Similarly, in early 2025 the West Virginia Coal Association, the Gas and Oil Association of West Virginia, America’s Coal Associations, and a coalition of 22 states sued the state of New York in the Northern District of New York challenging the New York Act.[21] In February 2025, the Chamber, the API, the National Mining Association, and the Business Council of New York filed suit against New York in the Southern District of New York;[22] and in May the Department of Justice and the Environmental Protection Agency (EPA) filed a separate suit against New York in the Southern District.[23]

The complaints raise similar issues involving federal preemption under the Supremacy Clause, the Dormant Commerce Clause, the Commerce Clause, and the Due Process Clause of the Fourteenth Amendment.[24] West Virginia’s Attorney General claims the Vermont Act would “fine America’s coal, oil and natural gas suppliers into oblivion.”[25] Other state parties similarly argue Vermont is enjoying the benefits of affordable fuel while penalizing the entities who help produce that fuel.[26] So far, one group has filed an amicus brief in the Vermont and New York cases and two groups have filed a motion to intervene in the Vermont cases while six groups have filed motions to intervene in the New York cases.[27] In the Vermont cases, for instance, a group of economists filed an amicus brief arguing, among other things, that the one-time fee imposed by the Act only represents a fraction of a typical fossil fuel company’s annual profits and will have no impact, like a carbon tax, on future production or costs to the state or consumers.[28] Outside arguments on both sides are likely to continue as the cases proceed through their respective courts and generate more attention.

Almost immediately following the issuance of Executive Order 14260, “Protecting American Energy from State Overreach,” the Trump administration sued Vermont and New York challenging the Acts.[29] The Trump administration complaints are nearly identical to the earlier claims and allege the Acts are preempted by the Clean Air Act, violate the Due Process and Commerce Clauses, are impermissibly retroactive, and interfere with foreign affairs.[30] President Trump’s administration sued New York and Vermont the day after preemptively suing Hawai’i and Michigan to block liability suits the states had yet to file against fossil fuel companies.[31] The speed with which the administration’s cases were brought and the extent of arguments against the Acts could indicate the administration’s concern that these Acts could be effective in requiring fossil fuel companies to pay for the damage their products have caused where other efforts have fallen short.[32]

What’s Next?

The plaintiffs argue, among other things, that regardless of their stated objectives these Acts are attempting to mitigate GHG emissions on a national level or at least will have the effect of doing so, and that power lies exclusively in the Clean Air Act. This argument is based primarily on the Supreme Court’s decision in American Electric Power v. Connecticut[33] where the Court dismissed a common law nuisance claim seeking to limit emissions of a utility’s power plants because, among other reasons, state common law was displaced by the Clean Air Act.[34] A federal appeals court later looked to this ruling and applied it to monetary damage claims for climate change based on federal common law.[35]

The federal government also heavily relies on City of New York v. Chevron where the Second Circuit dismissed a case from New York City seeking damages against fossil fuel companies for climate change-related harms reaffirming EPA’s authority to regulate domestic greenhouse gas emissions.[36] It is not clear how the courts will treat these novel Acts and whether they will view them as an end-around attempt by New York and Vermont to mitigate GHG emissions. On their face, the Acts do not do so. Rather, they punish past actions over a limited period of time and focus on cost recovery and adaption, not mitigation or emissions regulation.

Further muddying the waters, EPA recently proposed repealing the endangerment finding, meaning GHGs would no longer be regulated under the Clean Air Act as a danger to public health or welfare, and, thus, EPA would no longer be obligated to regulate them.[37] If the repeal is successful, the effect of it on the Acts and the various other climate change related lawsuits, remains to be seen. If EPA is no longer obligated to regulate GHGs, a principal argument of the fossil fuel companies and some courts regarding federal preemption in this area would seemingly no longer apply. Regardless, the Acts’ focus on past actions and adaptation funding may make it easier for New York and Vermont to survive the federal preemption challenges.

The Acts, however, are novel and not perfectly analogous to the federal law of CERCLA, and GHGs are different than the traditional pollutants regulated under CERCLA. The Acts face similar constitutional challenges to those CERCLA has, for the most part, warded off successfully; in particular, challenges to the Acts’ retroactivity, strict liability, and interstate commerce effects. These challenges could very well be decided by a Supreme Court reluctant to accept state attempts to address the consequences of climate change.

If the various cases challenging the Acts are ultimately dismissed, Vermont and New York can start receiving funds for climate change adaptation projects within the next decade. If, however, the Acts are struck down, the states will continue to struggle for federal aid in this area. The federal government has slashed funding for agencies like the Federal Emergency Management Agency (FEMA) that help states recover from natural disasters and extreme weather events.[38] Further, in states like Vermont and New York where residents already face high taxes and costs of living, it would be challenging for the states to raise funding for climate change adaptation projects by increasing taxes and further burdening its residents.[39] Without federal assistance and funding, it’s difficult to imagine how states will cope and recover after more frequent and intense storms and natural disasters in the future.[40]

Conclusion

States need outside funding to be able to adapt to and address the extreme negative effects of climate change largely caused by the emission of GHGs, much of it from fossil fueled electric generation or transportation.[41] The Acts provide a process to secure funding from those industries that should be held accountable. The world seems to be on track to blow through its climate change goals,[42] so resiliency and adaptation need to be prioritized and funded immediately. The Acts represent a responsible, limited, and fair way to do this.

Author Bio:
Emily is a third-year law student at VLGS with a concentration in international and comparative law. She is actively involved in the Environmental and Environmental Justice law societies on campus and is working towards a career that incorporates environmental justice principles at every level. She has a background in molecular biology and aims to be a middleperson between scientists and communities experiencing environmental damage on the ground and decisionmakers who may never have faced such difficulties.

[1] Climate Superfund Cost Recovery Program, 10 V.S.A. § 596–599; Karen Zraick, New ‘Climate Superfund’ Laws Face Widening Legal Challenges, N.Y. Times (May 2, 2025), https://www.nytimes.com/2025/05/02/climate/climate-superfund-law-vermont-new-york-lawsuits.html.

[2] Climate Change Adaptation Cost Recovery Program, N.Y. Env’t Conserv. L. § 76-0103 (2025).

[3] Sarah McGovern, The Future of Climate Superfund Laws, 55 Envt’l. L. Rep. 10493, 10495 (2025).

[4] In New York, “greenhouse gas” means “carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, sulfur hexafluoride, and any other substance emitted into the air that may be reasonably anticipated to cause or contribute to anthropogenic climate change.” N.Y. Env’t Conserv. L. § 75-0101(7) (2025). In Vermont, “greenhouse gas” means any chemical or physical substance “emitted into the air and that the Secretary may reasonably anticipate to cause or contribute to climate change, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride.” 10 V.S.A. § 552(11).

[5] 42 U.S.C. § 9601.

[6] Strict liability refers to the existence of liability regardless of the liable party’s intent or mental state when they did the act. The justification generally is that the party causing harm does so while enriching themselves and are thus in the best position to bear the loss. Alexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forest L. Rev. 903, 907 (2004).

[7] See e.g. City of N.Y. v. Chevron Corp., 993 F.3d 81, 97 (2d Cir. 2021).

[8] 10 V.S.A. § 598; N.Y. Env’t Conserv. L. § 76-0103 (LexisNexis 2025).

[9] Organization for Economic Co-operation and Development, The Polluter Pays Principle 6 (2008).

[10] Id.

[11] Id. at 15.

[12] 10 V.S.A. § 596.

[13] Id.

[14] N.Y. Env’t Conserv. L. § 76-0101 (2025).

[15] 10 V.S.A. § 597; N.Y. Env’t Conserv. L. § 76-0103 (2025).

[16] 10 V.S.A. § 596; N.Y. CLS ECL § 76-0101.

[17] Id.

[18] Austyn Gaffney, State and nonprofits ask federal courts to dismiss lawsuits against Climate Superfund Act, vtdigger (Aug. 22, 2025 at 04:08 pm ET), https://vtdigger.org/2025/08/22/state-and-nonprofits-ask-federal-courts-to-dismiss-lawsuits-against-climate-superfund-act/; McGovern supra note 3.

[19] Complaint, Chamber of Com. v. Moore, No. 2:24-cv-01513 (D. Vt. filed Dec. 30, 2024).

[20] Complaint in Intervention, Chamber of Com. v. Moore, No. 2:24-cv-01513 (D. Vt. filed May 7, 2025).

[21] Complaint, West Virginia v. James, No. 1:25-cv-00168 (N.D.N.Y. filed Feb. 6, 2025).

[22] Complaint, Chamber of Com. v. New York, 1:25-cv-01738 (S.D.N.Y. filed Feb. 28, 2025).

[23] Complaint, United States v. New York, 1:25-cv-03656 (S.D.N.Y. filed May 1, 2025).

[24] Complaint in Intervention, Chamber of Com. v. Moore, No. 2:24-cv-01513 ¶¶ 2, 6-11 (D. Vt. filed May 1, 2025); Complaint, West Virginia v. James, No. 1:25-cv-00168 ¶¶ 4, 5, 8, 11-16 (N.D.N.Y. filed Feb. 6, 2025); Complaint, United States v. New York, 1:25-cv-03656 ¶¶ 6-7 (S.D.N.Y. filed May 1, 2025); Complaint, Chamber of Com. v. New York, 1:25-cv-01738 ¶¶ 7-12 (S.D.N.Y. filed Feb. 28, 2025).

[25] Karen Zraick, New ‘Climate Superfund’ Laws Face Widening Legal Challenges, N.Y. Times (May 2, 2025), https://www.nytimes.com/2025/05/02/climate/climate-superfund-law-vermont-new-york-lawsuits.html.

[26] Id.

[27] United States v. Vermont, Sabin Center for Climate Change Law, https://www.climatecasechart.com/collections/united-states-v-vermont_e88e (last visited Dec. 21, 2025); Chamber of Commerce of the United States v. Moore, Sabin Center for Climate Change Law, https://www.climatecasechart.com/document/chamber-of-commerce-of-the-united-states-of-america-v-moore_d9a1?q=climate+superfund+act (last visited Dec. 21, 2025); United States v. New York, Sabin Center for Climate Change Law, https://www.climatecasechart.com/document/united-states-v-new-york_e0ca?q=climate+superfund+act (last visited Dec. 21, 2025).

[28] Gaffney, supra note 18.

[29] Nina Sablan, Trump Joins the Opposition to Vermont’s Climate Superfund Act, Calling it “Burdensome’ and “Ideologically Motivated’, Inside Climate News (June 27, 2025), https://insideclimatenews.org/news/27062025/trump-administration-tries-to-stop-vermont-climate-superfund-act//.

[30] See Complaint, United States v. New York, No. 1:25-cv-03656 ¶¶ 6-7 (S.D.N.Y. filed May 1, 2025); Complaint, United States v. Vermont, No. 2:25-cv-463 ¶¶ 32-36 (D. Vt. filed May 1, 2025).

[31] Sablan, supra note 29.

[32] See e.g. City of N.Y., 993 F.3d.

[33] 564 U.S. 410, 427 (2011).

[34] Id. at 426.

[35] Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

[36] City of N.Y., 993 F.3d at 100.

[37] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288.

[38] Sarah Labowitz & Debbra Goh, Get Rid of FEMA? Some States Will hurt More Than Others, Carnegie Endowment for Int’l Peace (Mar. 6, 2025), https://carnegieendowment.org/emissary/2025/03/fema-disaster-recovery-budget-cuts-state-impact?lang=en.

[39] Sablan, supra note 29.

[40] Labowitz & Goh, supra note 38.

[41] Labowitz & Goh, supra note 38; Causes and Effects of Climate Change, United Nations, https://www.un.org/en/climatechange/science/causes-effects-climate-change (last visited Dec. 21, 2025).

[42] The world is likely to exceed a key global warming target soon. Now what?, UN environment programme (Nov. 5, 2025), https://www.unep.org/news-and-stories/story/world-likely-exceed-key-global-warming-target-soon-now-what.