Last week, the Trump administration sued the state of Vermont over its landmark Climate Superfund Act.
The law — which was the first of its kind in the country — seeks damages from the largest fossil fuel companies in the world, based on how much their products contributed to climate change globally and how much climate change has cost Vermont in recent decades.
Vermont Attorney General Charity Clark said she looks forward to defending Vermont against the suit.
“I supported this legislation, and we look forward to defending it in court,” Clark said, adding that Vermont has already suffered grave damage from climate change.
She joined a coalition of 14 attorneys general in suing the administration Friday over, among other things, its plans to issue expedited permits to oil and gas companies.
Filed in federal court on May 1, the lawsuit accuses Vermont of usurping federal power in five ways — by regulating interstate and international trade, regulating air quality outside its borders, by attempting to set national energy policy and by interfering in foreign affairs.
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In the lawsuit, the administration called Vermont’s Climate Superfund Act a “transparent monetary extraction scheme” and alleged it “purports to build a multibillion-dollar nest egg to fund ‘climate change adaptation projects’ within the state, paid for by out-of-state businesses.”
The administration is suing three other states over similar policies.
Unlike Vermont, New York state has already tallied its bill of climate damages — to the tune of $75 billion. Michigan and Hawaii have similar laws on the books, and the administration has sued them, too.
Late last year, the U.S. Chamber of Commerce and American Petroleum Institute also sued Vermont over the law, and a coalition of 24 states including West Virginia petitioned to join their lawsuit this spring.
Michael Gerrard, who leads Columbia’s Sabin Center for Climate Change Law, said a judge will likely dismiss the Trump administration’s case against Vermont for being too similar to the industry suit, but said it sends a strong message to the fossil fuel industry nonetheless.
He called this a fight over state and federal powers.
“The fact that the Trump administration filed its own lawsuits challenging the climate superfund laws and sued [New York], Hawaii and Michigan … was a very aggressive act that probably doesn't get very far in court,” he said, “But it does demonstrate how much the Trump administration wants to help out the fossil fuel companies.”
Gerrard noted there’s a wild card in the mix: President Trump has talked about challenging a provision of federal law that compels the Environmental Protection Agency to regulate greenhouse gas emissions under the Clean Air Act.
If that happens, it would weaken the administration’s argument that states like Vermont are stepping on the federal government’s regulatory toes.
Patrick Parenteau, a professor emeritus at Vermont Law and Graduate School’s Environmental Law Clinic, said the administration and fossil fuel industry’s argument that Vermont is attempting to improperly regulate air quality by seeking damages for climate change does not hold water.
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However, he said these lawsuits over Vermont’s Climate Superfund Act — or a similar law in another state — could ultimately wind up at the U.S. Supreme Court.
“There's never been a Supreme Court case saying that states are preempted under the Clean Air Act from suing for the effects of carbon pollution,” Parenteau said. “So that would be a landmark decision by the Supreme Court, with all kinds of serious implications for states seeking to protect their citizens from pollution of whatever source.”
Currently, more than 30 states are seeking damages for climate change from fossil fuel companies, using a variety of legal arguments. All could be affected by a Supreme Court decision about the Climate Superfund Act.
Vermont’s law rests on the idea that a state can quantify how much climate change has cost its citizens over a given time period, and in turn, how much a given polluter contributed to that damage.
It’s a feat two researchers at Dartmouth say is feasible.
In a paper published recently in Nature, climate scientists Justin Mankin and Christopher Callahan show it’s possible to calculate how much a given company — for example, Exxon Mobil — contributed to the economic impact of climate change-fueled extreme heat over a given period of time.
The paper tests a model to do this work, and the researchers are looking to expand it to include other climate impacts like tropical cyclones and flooding.
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Mankin said the fossil fuel industry has long made the case that specific damages from climate change can’t be linked to the actions of individual companies or governments, but that’s no longer true.
The United States is also the single largest producer of crude oil in the world, according to the federal Energy Information Administration.
“Climate impacts are everywhere. They are far costlier than we understood them to be, and science is now positioned to tell you which sets of emissions [from which polluters] are responsible for those costs,” he said.
And while the courts will ultimately decide whether Vermont’s approach to recouping those costs is lawful, scientists say the question of whether those damages exist and whether they can be tallied is no longer up for debate.
“My perception of the existing challenges to state-level laws from the federal government is that they will not turn on scientific evidence,” Callahan said.
