Superfund Me: A High-Level Overview of Climate Change Superfund Bills
Written by Erin Evans and Dayna Smith
Recent state-level “Climate Superfund” legislation seeks to hold climate polluters liable and shift climate change legal policies from simply adaptive and preventive policies to ones demanding payback by top contributors. The Superfund legislation model is not a new concept. However, states have recently adopted the framework to demand justice for climate pollution. Multiple states have considered Climate Superfund legislation, and two have enacted it, paving the way for more states to follow. This article gives a brief historical overview of federal Superfund, a high-level report of state-level Climate Superfund bills, and an outlook on possible legal questions that may arise in the future as more legislation like this emerges.
A Brief History of Federal Superfund Legislation
In 1980, Congress enacted The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), more commonly known as Superfund. This monumental piece of legislation constructed a new tax on chemical and petroleum industries. It also provided broader Federal authority to respond directly to “releases or threatened releases of hazardous substances that may endanger public health or the environment.” CERCLA dictated requirements for closed and abandoned hazardous waste sites, including providing for the liability of people responsible for the hazardous waste and establishing a fund for cleanup if there was no identifiable responsible party. The law authorized specifically two categories of response actions by the government: short-term removals to address a prompt release of a hazardous substance; and long-term response actions to permanently reduce releases of hazardous substances, pollutants, or contaminants. Significantly, CERCLA imposes liability on parties responsible for the presence of hazardous substances at a Superfund site. Liability can either be retroactive, joint and several, or strict.
CERCLA has been a powerful tool to hold polluters responsible. For example, a 2021 United States Supreme Court decision in Territory of Guam v. United States allowed Guam to proceed with a cost-recovery claim against the U.S. Navy stemming from a toxic waste and ammunition disposal site. The specific issue before the Court was whether a consent decree under the Clean Water Act (CWA) could trigger the three-year statute of limitations under CERCLA. The EPA had sued Guam in 2002 under the CWA, and the parties entered a consent decree whereby Guam paid penalties and shouldered the costs of containing and closing the disposal site. In 2017, Guam filed suit against the United States under CERCLA, arguing it was a potentially responsible party (PRP) who should foot some of the clean-up bill. The Court, in a rare unanimous decision, rejected the federal government’s argument that the statute of limitations period had run, and held that a non-CERCLA settlement does not settle CERCLA liability or trigger the statute of limitations.
This decision in Territory of Guam v. United States revived Guam’s cost recovery claim against the United States Navy for its share of a $160 million cleanup bill. It also potentially opens the door to other contribution claims against polluters, demonstrating CERCLA’s continuing role in making polluters pay. The power of CERCLA is that a polluter can be responsible, even if they did not do anything out of their ordinary course of business to cause the pollution. And, with more state-level, CERCLA-esque legislation on the rise, polluters may have to reach into their pockets more often.
State-Level Superfund Efforts
In 2024, several states, including Vermont and New York, have enacted Climate Change Superfund legislation, which would require major pollution contributors, including large fossil-fuel producers and refiners, to pay for hundreds of billions of dollars’ worth of state-level climate adaptation infrastructure. Other states—including Massachusetts, Maryland, California, and Minnesota—are pushing for similar legislation, however Vermont and New York are the only states that have passed bills thus far. These bills are modeled after CERCLA, seeking to impose liability on major polluters.
In May 2024, Vermont enacted the first law of its kind requiring fossil-fuel companies to pay for a portion of the costs of climate-change-fueled weather disasters that have plagued the State. Lawmakers “hope the landmark policy will force the biggest fossil-fuel companies in the world to compensate Vermont for damage wrought by climate change,” enforcing the longstanding “principle that the polluter pays.” Widespread support bolstered the bill after Vermont suffered catastrophic flooding in 2023. The 2023 floods resulted in $500 million in damage claims made to the Federal Emergency Management Agency (FEMA)—more than double the amount of financial damages caused by Tropical Storme Irene in 2011. The enactment of S.259, the Climate Superfund Act, marks “a new era in the effort to hold the world’s largest polluters responsible for the mess they have made.”
Modeled after CERCLA, the law empowers Vermont’s Attorney General to mandate payments from large sources of climate change pollution, including companies like ExxonMobil and Shell, for their share of climate change costs within the State. Using emissions data from 1995 to 2024, the payment amounts will be apportioned based on the impact each company’s products had on climate change. The specific companies and the precise amounts allocated to each company will be determined based on calculations of the degree that they directly contributed to weather disasters in Vermont, and how much money those events cost the State. The payments collected under the Vermont Climate Superfund Act will then provide funding for climate change adaptation projects in the State, “including nature-based solutions and flood protections, upgrading stormwater drainage systems, making proactive upgrades to roads, bridges, railroads, and transit systems, and more.”
New York is also paving the way for these landmark bills. In June 2024, New York legislators passed another historic bill that would force fossil-fuel companies to pay for costs associated with climate change.
The Climate Change Superfund Act (S.02129) would require the largest fossil-fuel companies to pay a total of $75 billion over a 25-year period in $3 billion increments. One of the bill’s key sponsors, New York Senator Liz Krueger, noted that this $3 billion figure will not even suffice the annual costs of adaptation and mitigation that New York currently pays. The Climate Change Superfund Act currently awaits signature by New York Governor Kathy Hochul, one of 144 bills currently in the Governor’s office.
Possible Future Legal Questions and Issues
These landmark legislative actions almost certainly will induce legal challenges and disputes from these large fossil-fuel companies. Currently, more than 30 state and local governments have sued the oil industry, with some of the lawsuits drawing on climate change attribution science to hold fossil-fuel companies liable for climate change and its disastrous effects.
For example, in State of Rhode Island v. Chevron, Rhode Island sued fossil-fuel companies for causing climate change impacts that adversely affected the State. The State relied on several tort law theories: public nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and impairment of the Public Trust Resources State Environmental Rights Act. The State asked for compensatory damages, equitable relief, abatement of nuisances, punitive damages, disgorgement of profits, and associated costs of attorneys’ fees.
The fossil-fuel companies moved to dismiss the action for lack of personal jurisdiction due to insufficient contacts within the State of Rhode Island. But on April 28, 2023, the Rhode Island Superior Court granted the State’s motion to conduct jurisdictional discovery related to three narrow issues: the defendants’ fossil-fuel related business activity within the State during the times stipulated in the complaint; defendants’ marketing and promotion of fossil-fuel products to Rhode Island consumers; and defendants’ historical knowledge of climate change impacts in the State during that time period. This is a significant advancement of this case, signaling the court’s interest in how defendants have potentially impacted Rhode Island.
Many of these large fossil-fuel companies are fighting the existing lawsuits, and now the new Climate Superfund laws, while publicly trying to cast doubt on attribution science. Attribution science plays a significant part of the allocation of damages for existing Climate Superfund bills, particularly since the laws do not depend on any proof of wrongdoing—companies are liable because pollution is part of their operation. The American Petroleum Institute (API) has already signaled its challenge to attribution science within the Vermont Climate Superfund Act: “With respect to impact attribution from source emissions, it seems obvious that those who drafted this legislation are aware of the difficulties of establishing a conclusive link between anthropogenic climate change and alleged injuries to Vermont.” Yet, despite public condemnation, analysts predict that the primary legal challenge to Climate Superfund legislation will not be based on attribution science, as courts generally give legislatures discretion to use the best available science in crafting laws.
Instead, oil companies are probably weighing their options, though API has already signaled some potential legal challenges. We may see preemptive challenges to Climate Superfund laws on constitutional grounds, such as a due process violation. In essence, companies would argue that the laws are punishing them for engaging in a lawful economic activity. CERCLA faced similar arguments which were resolved against the companies in the U.S. Supreme Court based on existing precedent. It is not clear whether that CERCLA precedent would apply to the state laws, though. There is also a possible question of whether the federal CERCLA legislation preempts the state versions.
Alternatively, companies may wait to see if the states send a bill and then not pay it. Then, it is up to the state to pursue legal action under their pertinent Climate Superfund law to seek recovery. Regardless of the means, legal analysts do not expect fossil fuel companies to pay states without a fight.
Looking Ahead
Because many fossil-fuel companies will likely challenge state Climate Superfund laws, there is a potentially rocky road ahead for the states leading the charge. However, the legal landscape for this area of the law promises to change and adapt over time as more states consider and pass Climate Superfund legislation. Several states have already seen some success in pursuing legal recourse against fossil-fuel companies, and Climate Superfund laws have the potential to be another extremely powerful tool in the toolbelt. So, will other states finally exclaim Superfund me and demand justice?
Author Bios
Erin Evans is a third-year J.D. student at Vermont Law & Graduate School from Dallas, Texas. Erin received her undergraduate degree from Texas Tech University, majoring in Honors Arts & Letters with a Pre-Law focus, and graduating with Highest Honors. While at Vermont Law & Graduate School, she has been involved as a Staff Editor for the Vermont Journal of Environmental Law (VJEL), a Production Editor for VJEL, and a Moot Court Advisory Board (MCAB) member.
Professor Dayna Smith an Associate Professor of Law and Associate Director of the Academic Success Program at Vermont Law & Graduate School. She is the faculty advisor for the Vermont Journal of Environmental Law. Before working at Vermont Law & Graduate School, Professor Smith was an associate at a firm focused on toxic tort litigation, and worked at the University of Illinois College of Law International and Graduate Programs Office. While in law school, Professor Smith was the Editor-in-Chief of the Vermont Journal of Environmental Law.