Vermont is one signature away from charging Big Oil for climate change through superfund legislation, a strategy meant to dodge the “roadblocks” that have impeded other attempts.
In early May, the state House of Representatives advanced a climate superfund bill with a preliminary vote of 100-33, writes The Guardian, “enough support to overcome a potential veto by the state’s Republican governor, Phil Scott.”
The bill, which eventually passed the House in a 94-38 vote, is modelled after the U.S. Environmental Protection Agency’s Superfund program, which requires companies to pay for toxic waste cleanup. It would charge major polluters operating in Vermont billions of dollars for their past emissions, making it the first U.S. state “to hold fossil fuel companies liable for their planet-heating pollution.”
Climate superfund bills are an apt response to the “roadblocks” lawsuits face when seeking similar results, said Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School. Courts say legislatures must address the climate damages issue, not judges, and that’s what Vermont is doing.
Now that the Climate Superfund Act has passed the House, it moves back to the state Senate, “where it received preliminary approval in a 26-3 vote last month,” the Guardian writes. “It will then head to Governor Scott’s desk for final approval.”
Scott has signaled he won’t sign it, expressing worries about the state’s ability to handle inevitable lawsuits from major corporations.
“We’re a mosquito compared to a giant,” said Sen. Randy Brock, a Republican who voted against the bill. “ExxonMobil alone has annual sales of US$344.6 billion, and Vermont has an annual budget of about $8.5 billion.”
Still, lawmakers “think they have a strong shot” at an override if there is a veto, writes Vermont Public Radio.
The bill follows the “polluter pays principle” of hazardous waste remediation laws, writes Grist. Fossil fuel companies would have to pay into a state fund to provide for climate change adaptation or resilience projects, based on their emissions between 1995 and 2005. Using climate models, the state can calculate how much warming traces back to each company’s emissions and rely on established attribution science to determine the degree of climate impact.
Four other U.S. states—California, Maryland, Massachusetts, and New York—are working on similar legislation and looking to see how things unfold in Vermont. All five states also have lawsuits filed against companies for deceiving the public about the dangers of burning fossil fuels. But one difference with superfund legislation is that it does not need to prove a history of deception.
“This bill is not about punishing big oil for deceiving the public,” said Elena Mihaly, vice-president of the Conservation Law Foundation’s Vermont chapter.
Meanwhile, Michigan Attorney General Dana Nessel has also announced plans to sue Big Oil to help address climate damages, and is seeking outside legal help to form a strategy. Nessel’s department is accepting proposals from attorneys and law firms about possible litigation approaches through June 5, reports Grist.
