“Drumbeat” of Demands for Polluter Accountability Grow as Climate Crisis Intensifies
New York governor faces calls to sign state’s climate superfund bill into law, while survivors of climate disasters urge DOJ to take up fossil fuel industry probe.
Photo Credit: Food and Water Watch
With the planet heating up and extreme weather continuing to devastate communities across the United States and around the world, efforts and calls are on the rise to hold the fossil fuel industry accountable for the damage.
New York is on the verge of becoming the second state in the US to pass legislation to make large fossil fuel producers help pay for the costs of responding and adapting to climate-related disasters and impacts. From catastrophic storms and flooding, sea level rise and changing precipitation patterns to lethal heatwaves and exceptionally hot and dry conditions that fuel more intense wildfires, climate change – primarily caused by fossil fuel combustion – is already upon us and is costing billions of dollars. These costs, some lawmakers say, should not be the sole responsibility of taxpayers to pay. Corporate climate polluters whose products generate a substantial portion of heat-trapping emissions should be forced to help pick up the tab, according to a novel legislative strategy modeled after the federal Superfund law that holds polluters strictly liable for cleaning up hazardous waste sites.
Vermont recently enacted a first-in-the-nation “climate superfund” law that essentially would bill major fossil fuel extractors for climate-related costs incurred by the state. The legislation passed in a single legislative session with tri-partisan support, and on May 30 the state’s Republican Governor Phil Scott allowed it to become law without his signature. As I recently reported for Drilled, environmental advocates say this move was a very big deal and a “real first.” More on this, including how it happened and what comes next, below.
But first, it’s worth noting that Vermont is not alone. Similar polluter pays climate bills have been introduced in Massachusetts, Maryland, New York, and California, and New Jersey is set to introduce its version in the next legislative session. New York’s climate superfund bill, initially introduced two years ago, actually passed both legislative chambers over the last several months. It now awaits Democratic Governor Kathy Hochul’s signature. But it is unclear when, or even if, she will sign it into law.
Katy Zielinski, a spokesperson for the governor’s press office, did not respond to my questions of whether Gov. Hochul plans to sign the bill or when a decision is expected. Instead, Zielinski simply told me: “the Governor is reviewing the legislation.”
As the Lever reported in April, Hochul declined to include the bill in the final state budget, which would be another route to passage, and one reason could be that it would risk upsetting fossil fuel interests who donated to her campaign. “During Hochul’s 2022 campaign, the governor received half a million dollars in campaign donations from oil and gas industry companies and executives,” the Lever’s Katya Schwenk reported. “Some of those donors have ties to the 38 fossil fuel companies that could face sanctions under the Climate Change Superfund Act.”
Last week, Congressman Jerry Nadler sent Governor Hochul a letter urging her to approve the legislation, which passed the New York State Senate on May 7, 2024 and the New York Assembly on June 8, 2024. “As you know, it’s going to cost hundreds of billions to shore up New York against the impacts of climate change – some estimates put the price tags at $52 billion to protect NYC Harbor, $75-$100 billion to protect Long Island, and $55 billion for climate costs across the rest of the state,” Nadler wrote. “The opportunity to offset the skyrocketing taxpayer costs resulting from climate catastrophes and add momentum to the national effort cannot be ignored.”
Climate activists have also rallied and called on the New York Governor to urgently sign the bill into law, noting the extreme heat and other climate impacts that increasingly impact people across the state.
“Week after week we hit record after record for hottest day in history. All rain now means flooded streets and flooded schools,” 19-year-old Keanu Arpels-Josiah, policy co-lead with Fridays For Future NYC, said in a statement. “It’s time for Governor Hochul to stop placing the interests of corporate mega-donors and the fossil fuel industry over our futures, and over climate action. It’s time for Governor Hochul to listen to our generation, to the legislature, to the science, to congress, and begin to hold those industries accountable by signing the Climate Change Superfund Act immediately.”
The legislation seeks to recover $75 billion in total ($3 billion annually for 25 years) from large fossil fuel extractors and refiners – companies who are responsible for over 1 billion tons of greenhouse gas pollution during a covered period of 2000 to 2018. The recovered funds would go towards climate adaptation projects and investments such as storm water drainage upgrades, installing or upgrading cooling systems in public buildings, and addressing climate-related public health challenges.
If New York were to enact this bill into law, it “would be a game changer,” said Jamie Henn, a climate advocate and founder and director of Fossil Free Media, which supports the campaign to hold fossil fuel companies accountable for climate damages and deception.
“If New York passes this, then we’re really off to the races,” Henn told me. “Then it’s not just Vermont. We’ve got a huge state on board and a really powerful state AG’s office to defend the law. And I think that will open the floodgates for more states to pass this type of bill.”
Vermont Moves First Following Devastating Floods
As Henn noted, “Vermont was the brave state to jump over the barricade first” in terms of passing a law to hold fossil fuel companies accountable for climate costs. In July 2023, Vermont experienced its worst flooding event in nearly a century, as heavy rains caused riverbanks to overflow, wiping out crops and inundating entire communities like the state capital of Montpelier. The damage from this flooding is estimated to cost over a billion dollars. But in the era of climate change, this extreme flooding is not an anomaly. This past July, a year to the day of the 2023 floods, parts of Vermont again saw severe flooding as the remnants of Hurricane Beryl lashed the Northeast. As NOAA’s National Centers for Environmental Information explains in a new report: “Multiple waterways spilled their banks, with a few in Vermont reaching one of their five highest levels on record. Floodwaters washed away roads and bridges, inundated buildings, led to evacuations and dozens of water rescues, impacted public water supplies, resulted in crop losses, and contributed to at least two deaths.”
The 2023 flooding that Vermont experienced was serious enough to compel state lawmakers into action, as they passed several bills to address the state’s flood response and climate resiliency, including the Climate Superfund Act.
“Going into the legislative session, we had that very heavily on our minds” Vermont state senator Anne Watson, a lead sponsor of the climate superfund bill, told me. Martin LaLonde, a Vermont state representative and another lead sponsor of the bill, agreed, saying the flooding made the issue of climate action “salient” for lawmakers.
Another factor that helped Vermont legislators expedite the legislation, LaLonde explained, was the fact that other states had already put forward similar proposals, so Vermont wasn’t starting from scratch. “We really built on the work that these other states had undertaken,” he said.
Vermont also benefitted from having generally widespread support for climate action from constituents across the state, as well as a strong advocacy push from groups supporting the campaign to hold climate polluters accountable.
“I think it was a really important partnership of Vermonters who have long cared about climate action and becoming more resilient in a warming world, and this recognition that Vermont care can’t bear the brunt of the costs of climate change alone,” Johanna Miller, energy and climate program director at Vermont Natural Resources Council, told me.
“Last summer’s floods were economically devastating in many parts of the state. That makes a big difference to policymakers,” said Christophe Courchesne, director of the Environmental Advocacy Clinic at Vermont Law and Graduate School. “You combine that with a great deal of outstanding advocacy by all sorts of different Vermonters arguing for this policy in the legislature, I think that made a huge difference in Vermont moving forward with this.”
Vermont’s new law is expected to be challenged in court by the fossil fuel industry, and it will be at least several years before the state will see any payments. The state first has to adopt rules to determine who the responsible parties are, what the total costs are to the state from greenhouse gas emissions during the covered period (1995 through 2024), and how much each responsible party or company would be on the hook for paying. Vermont has put out an official Request for Information (RFI) soliciting expert input to help inform this process.
“As we advance this important legislation, we are committed to learning from academics, experts, and consultants who have laid the groundwork for states to be able to hold fossil fuel companies accountable,” said Vermont Secretary of Natural Resources Julie Moore.
“This work is even more important as our state recovers from a second straight year of widespread flooding, with the impact falling hardest on low-income Vermonters and our most vulnerable communities. Our Office stands ready to start implementing the Climate Superfund Act, to ensure the costs of climate change are shouldered by the polluters responsible, not Vermonters,” Vermont State Treasurer Mike Pieciak said.
Responses to the RFI are due by September 30, 2024.
Climate Survivors Demand Justice
Vermont is also among a handful of states, along with dozens of municipalities, that have brought civil climate accountability lawsuits against major oil and gas companies. Some of the lawsuits seek to recover damage costs for climate impacts, while other cases aim to hold companies like ExxonMobil accountable under state consumer protection laws for allegedly deceiving the public about the climate consequences of fossil fuels and, more recently, for portraying the oil and gas business as environmentally sustainable and committed to climate solutions. These lawsuits have been tied up in procedural battles, although several cases are starting to advance towards the trial stage.
Meanwhile, some climate accountability advocates and legal experts have proposed a strategy of leveraging criminal law to attempt to hold major fossil fuel companies liable for climate-related deaths. The strategy, for now, remains a theoretical prospect in the US. But in Europe, climate advocacy organizations and individuals have started to act upon the idea. Three NGOs and eight individuals who experienced losses, including the death of loved ones, from climate disasters, filed a first-of-its-kind criminal complaint in Paris in May against TotalEnergies as well as against the company’s CEO, board of directors, and main shareholders. The individuals filing the complaint have all been personally impacted by extreme weather disasters intensified by the climate crisis, such as the 2019 Australian bushfires, the 2021 European floods, and the 2022 Pakistani floods.
In the US, people who have survived extreme weather events and climate disasters are also calling for accountability for fossil fuel companies. On August 15, more than 1,000 of these climate survivors along with over 10,000 individual allies from across the nation sent a letter to the US Department of Justice urging the top federal law office to “investigate the fossil fuel industry for climate-related crimes.”
“The burning of fossil fuels has racked up enormous profits for fossil fuel companies while stoking the fire of climate change and driving increasingly lethal extreme weather events that have destroyed lives, property, and livelihoods,” the letter states. “Victims and survivors of the industry-caused climate crisis deserve justice.”
Photo courtesy of Public Citizen
The letter adds to a growing chorus of calls for the DOJ to initiate legal action against the fossil fuel industry over climate. In early May, the attorney who previously led the Department’s successful civil racketeering lawsuit against the tobacco industry, Sharon Eubanks, testified at a congressional hearing about the striking similarities between Big Tobacco and Big Oil, saying she is confident there is adequate basis for DOJ to take up an investigation of Big Oil. Following her testimony, Democratic members of Congress Rep. Jamie Raskin and Sen. Sheldon Whitehouse, who issued a joint report based on a congressional investigation into the industry’s alleged climate deception and disinformation, sent a letter to Attorney General Merrick Garland requesting that the US Justice Department open an investigation into the industry.
DOJ, however, has so far been silent on the matter. When I contacted the Department’s Public Affairs Office after Eubanks’ testimony to ask if it would consider her recommendation, a DOJ spokesperson told me they have no comment.
That is the same response that the organizations who spearheaded the climate survivors’ letter, Public Citizen and Chesapeake Climate Action Network, got when they requested an in-person delivery of the letter, according to Clara Vondrich, senior policy counsel at Public Citizen.
“Look, we’ve been disappointed that DOJ hasn’t taken a stronger stance. Its job is to administer justice,” Vondrich said. “Today faceless oil and gas companies are knowingly aiding and abetting climate disasters, wrecking lives and livelihoods all over the country. It’s a national injustice, and it deserves a national response.”
Despite the DOJ’s silence, Vondrich told me that climate accountability advocates are determined to keep speaking up. “The climate survivors are adding to the existing calls, because it’s time to draw a clear line between the perpetrators and the victims,” she said. “This is a drumbeat.”