Legal challenges against state climate superfund laws could erode top EPA law, expert says

Earlier this month, 22 states filed a lawsuit against New York’s new climate superfund law, which requires companies—past and present—that have contributed significantly to creating greenhouse gases to “bear a share of the costs of needed.”

The lawsuit claims the law encroaches on the federal government’s power to regulate interstate policy and that it goes against the due process clause by retroactively penalizing “a select few energy producers who lawfully extracted and refined fossil fuels.”

The law isn’t the first of its kind: Vermont passed a climate superfund act in May of last year, which is also facing a legal challenge. But environmental lawyer Amanda Halter told Tech Brew that it inspired backlash because of New York’s economic might. Halter is a partner in Pillsbury Winthrop Shaw Pittman LLP’s Environmental & Natural Resources practice.

“[New York has] such an enormous economy,” Halter said. “If this law actually survives—in whole or in part—the implications of that are enormous.”

Halter says it and Vermont’s law were modeled off of the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, a federal superfund act Congress enacted in 1980. CERCLA has been “resilient to legal challenges” and allows the Environmental Protection Agency to retroactively hold parties responsible for environmental contamination.

But if the New York law is found unconstitutional, Halter said that could threaten CERCLA.

“If this whole concept of retroactivity gets a fresh look, and these laws fail in part on that basis,” she told Tech Brew, “I think you'll see some clever lawyers saying, ‘hey, let’s re-look at the retroactive components of CERCLA and revisit whether that still is constitutional.”

What’s next: An initial hearing has yet to be scheduled, and New York Attorney General Letitia James hasn’t made a comment on the lawsuit. In a statement to multiple news outlets, Governor Kathy Hochul’s deputy communications director for energy and the environment Pat DeMichele said “corporate polluters should pay for the wreckage caused by the climate crisis—not everyday New Yorkers.”

“We look forward to defending this landmark legislation in court,” DeMichele said.