ARTICLE
16 January 2025

More On Climate Superfund Laws And Litigation

FH
Foley Hoag LLP

Contributor

Foley Hoag provides innovative, strategic legal services to public, private and government clients. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse experiences of our lawyers contribute to the exceptional senior-level service we deliver to clients.
Last week, we posted about New York State's enactment of the Climate Change Superfund Act. We promised to continue to monitor developments concerning climate superfund...
United States New York Environment

Last week, we posted about New York State's enactment of the Climate Change Superfund Act. We promised to continue to monitor developments concerning climate superfund legislation and to update readers as necessary. It's been less than a week, and here we are.

  • According to Inside EPA (subscription required), the tragic fires in and around Los Angeles have already triggered renewed efforts to enact a climate superfund law in California. One estimate has suggested the damage from the current fires could be between $135 billion and $150 billion. Inside EPA quotes Kassie Siegel of the Center for Biological Diversity's Climate Law Center as saying that:

Intensely destructive fires like these are exactly why we need a California climate superfund law . . . . It's just unacceptable that the polluters who have profited by causing climate change currently bear no responsibility for the consequences destroying lives, homes and communities.

  • At the same time, the Atlantic (subscription required) has a really interesting article explaining that, even as climate models advance, they are still not able to predict the impact of climate change at the local level.

The world has warmed enough that city planners, public health officials, insurance companies, farmers, and everyone else in the global economy want to know what's coming next for their patch of the planet. And telling them would require geographic precision that even the most advanced climate models don't yet have, as well as computing power that doesn't yet exist. Our picture of what is happening and probably will happen on Earth is less hazy than it's ever been. Still, the exquisitely local scale on which climate change is experienced and the global purview of our best tools to forecast its effects simply do not line up.


Climate superfund laws are not based on fine-grained climate attribution. However, there is little doubt that opponents of such laws will argue that the limits of our ability to model climate effects at a local level are a reason to be leery of such legislation. (Also, we can't resist the irony that, to model climate change accurately, we need models of such size and complexity that they will inevitably require massive amounts of electricity to run.)
  • Difficulties in climate attribution segue nicely into a discussion of litigation over the validity of climate superfund laws. As we noted last week, The Chamber of Commerce and the American Petroleum Institute have sued Vermont to invalidate the law. It's something of a kitchen sink complaint, and some of the claims are stronger than others, but it's certainly possible that the complaint might have a receptive judicial audience, at least before our current Supreme Court. One point worth noting is that Vermont is not a typical state – it has no fossil fuel extraction and no fossil fuel electric generation. It thus is potentially susceptible to arguments made by the plaintiffs that would not be available in other states. As a result, Vermont may not be the best test case for the law.

Time will tell whether climate superfund laws have significant legs. One thing is certain, though. Every event, such as the current Los Angeles wildfires, will add more momentum to efforts to try to impose liability for damages arguably related to climate change on fossil fuel companies. Climate superfund laws, or something like them, are not going away anytime soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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