As we have noted previously, a number of states have enacted legislation and/or brought claims against fossil fuel producers seeking payment for damages resulting from climate change. Legislative efforts include New York State's Climate Change Superfund Act and Vermont's Climate Superfund Act. These efforts have prompted other states and some industry groups to challenge these efforts as unconstitutional.
This past week, the U.S. Department of Justice ("DOJ") joined the fray, filing four separate lawsuits in federal district courts against the states of New York, Vermont, Hawaii, and Michigan. While the complaints filed against New York and Vermont on May 1 are aimed squarely at each state's version of Climate Superfund legislation, the lawsuits filed against Hawaii and Michigan on April 30 were preemptive strikes by the Trump Administration based on those states' intent to pursue litigation against fossil fuel companies for climate change damages.
Though there are commonalities across the four lawsuits, each case involves its own unique challenges.
Climate Superfund Legislation
Much like the existing lawsuits brought by red states and industry groups against New York and Vermont's respective Climate Superfund legislation, the federal government's complaints against each state allege that their Climate Superfund laws are unconstitutional overreaches which violate federal law, calling both the New York law and the Vermont law "a transparent monetary-extraction scheme."
In the complaints against New York and Vermont, the federal government argues that the Climate Superfund laws are preempted by the Clean Air Act, exceed the territorial reach of state legislative power, discriminate against interstate commerce, and interfere with the federal government's exclusive role in foreign affairs concerning environmental, economic, trade, and national security interests.
The same day the DOJ filed its lawsuits, a coalition of 24 Republican attorneys general, led by West Virginia, filed a complaint in intervention to join the existing lawsuit against Vermont's Climate Superfund Act brought by the American Petroleum Institute and the U.S. Chamber of Commerce in December 2024. A similar coalition of 22 red states and four industry groups previously filed a lawsuit against New York's Climate Change Superfund Act in February 2025. The coalition describes Vermont's law as a "retroactive and extraterritorial shakedown" that "provides an example of the chaos that can result when States step outside the bounds of their proper jurisdiction."
Climate Deception Litigation
Climate deception litigation seeks to hold fossil fuel companies responsible for knowingly misleading the public about the dangers of climate change and the role of their products in it. Hawaii and Michigan are two of several states that have filed or considered filing this type of lawsuit.
Despite the DOJ's preemptive filing, Hawaii pressed forward with its lawsuit on May 1, alleging that for decades the fossil fuel industry has had clear scientific evidence that burning fossil fuels would have "catastrophic consequences for the planet and its people," including Hawaii. It aims to hold the defendants accountable for negligence, public and private nuisance, trespass, harm to public trust resources, unfair and deceptive acts or practices, and failure to warn.
While Hawaii already filed a complaint, Michigan only got as far as declaring its intent to sue and hiring counsel to prepare to bring a complaint against a coalition of fossil fuel companies on this issue. Attorney General Dana Nessel called the Trump Administration's lawsuit "at best frivolous and arguably sanctionable."
The DOJ complaints lawsuits are in clear alignment with the Trump Administration's stated priorities in its recent Executive Order, "Protecting American Energy from State Overreach." As we have previously noted, the order directs the Attorney General to identify and stop the enforcement of any state and local laws, regulations, or policies that are deemed to burden domestic energy resources. It explicitly mentions the New York and Vermont Climate Superfund laws as examples of climate laws gone too far, calling them "'climate change' extortion law."
Since 2018, more than two dozen lawsuits similar to Hawaii's climate deception case have been filed against oil and gas companies. Claims have been brought in both state and federal court, under a variety of different legal theories. Judges have ruled that plaintiffs do not have standing in some cases, while others have inched their way toward trial and the potential information discovery could bring to light.
The Trump Administration's attack on New York and Vermont's Climate Superfund laws is a relatively conventional legal challenge, as those states are the only two which have actually enacted Climate Superfund legislation. While we won't speculate on the outcome, one can expect states to defend against these suits at least in part on the ground that, given that states' implementation processes are still underway, these laws are not yet ripe for judicial review.
The unusual decision to preemptively file lawsuits against Hawaii and Michigan (rather than intervene in active lawsuits by other states) suggests that the DOJ's recent lawsuits were at least in part an attempt to discourage states from bringing new legal actions. Other jurisdictions may already be acting in response to the federal government's threat: just two days after the DOJ announced its lawsuits against Hawaii and Michigan, Puerto Rico voluntarily dismissed its July 2024 climate deception lawsuit, though the territory did not list a reason for the dismissal.
More states and local governments taking bold steps to fight climate change could face hostile action from the federal government as the Attorney General completes her review of state and local laws. Only time will tell whether these attempts by the federal government to chill state climate action will have a lasting impact on state policies and continued efforts to pass other state Climate Superfund laws.
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.
