The Trump administration is escalating its attacks on “polluter pays” laws and lawsuits that try to force fossil fuel companies to help cover the costs of climate change.
There are dozens of these legal fights playing out nationwide. They have become increasingly significant as the Trump administration weakens federal efforts to fight global warming.
The latest move came on Friday, when the Justice Department asked a judge to permanently block New York State from enacting its new Climate Change Superfund Act, a law requiring oil companies to pay billions of dollars to fund projects to protect against intensifying heat, floods, wildfires and other damage from climate change.
“New York has declared war on those responsible for supplying our nation with reliable and affordable energy,” lawyers for the Justice Department wrote.
A senior adviser to Gov. Kathy Hochul, Ken Lovett, shot back that the law was intended to “protect everyday New Yorkers, not corporate polluters” and accused the Justice Department of “federal overreach.”
The Justice Department had sued New York over its law earlier this year, and also Vermont, the only other state with a climate superfund law. Similar laws have been proposed in California, Maryland, Massachusetts and New Jersey.
In other actions, the Justice Department this year also took aim at Hawaii and Michigan with a highly unusual legal tactic: It pre-emptively sued both of those states to try to prevent them from suing oil companies.
Many legal experts were especially taken aback by these two lawsuits, which represented a particularly unorthodox attempt to stop the growing number of suits filed by state and local governments. Suing to block another party from suing is an extraordinary move.
It may have not have gone as planned. Hawaii filed its lawsuit the very next day, while Michigan’s attorney general vowed not to “be bullied” as she decides whether to do so. In the Hawaii lawsuit, the state alleges that BP, Chevron, Exxon Mobil and other companies covered up what they knew about climate change and should help bear the costs of the resulting damage. Numerous other states and communities have filed similar lawsuits.
The defendants have asked the court to stop the proceedings while the Justice Department’s lawsuit unfolds.
When the suit was announced, Gov. Josh Green of Hawaii said that it was about “shifting the costs of surviving the climate crisis back where they belong, and protecting Hawaii citizens.” The complaint noted the state’s vulnerability to flooding and the increased risk of blazes like the deadly 2023 Maui wildfires.
Theodore J. Boutrous, Jr. a lawyer for Chevron, said that Hawaii’s lawsuit “ignores that Hawaii is the most petroleum-dependent state in the country,” according to federal data, and noted that a state law deems adequate supplies of petroleum “essential” for the health and safety of its population.Elise Otten, a spokeswoman for Exxon Mobil, struck a similar note, calling Hawaii’s suit “a real head scratcher” because of the state’s reliance on petroleum-powered ships to import goods.
The Trump administration and its allies say that climate-change lawsuits like these threaten the American energy industry and, by extension, national security.
There is also a brewing effort to get Congress to pass a federal shield law protecting fossil fuel companies from litigation, similar to the measure that immunizes gun manufacturers. In a letter to the Justice Department in June, 16 Republican state attorneys general asked the administration for such protections for the fossil fuel industry.
The Justice Department declined to comment on the letter.
The Republican attorneys general also suggested restricting federal funding for states that impose climate-change liability on energy companies. That would apply to New York and Vermont because of their Climate Superfund laws.
Industry trade groups and Republican attorneys general have also filed their own lawsuits against “polluter pays” climate measures. Their position, like those taken by the companies and the Justice Department, is that the measures amount to de facto regulations on emissions, and that federal laws overrule states on matters related to climate change. They also argue that imposing penalties on industry would drive up the prices people pay to fuel their cars or heat their homes.
That, however, is up for dispute. In a recently filed amicus brief in the Vermont case, several economic experts who support the law argued that energy prices are driven by supply and demand and the cost of production, not by one-time payments of the sort that would be required by the law. The group included Joseph Stiglitz, an economist at Columbia University who was awarded the Nobel Memorial Prize in Economic Sciences in 2001.
“This conclusion is based on established and well-accepted economic principles,” they wrote, adding that the government’s claims “are inconsistent with both economic theory and experience.”
The states have also argued that the measures are within their authority to protect their citizens. In Vermont, two environmental groups, the Northeast Organic Farming Association of Vermont and the Conservation Law Foundation, have backed the state’s superfund law, calling it “a constitutional exercise of Vermont’s traditional sovereign authority to raise revenue and protect the health, safety, and well-being of its residents.”
The climate-change lawsuits filed against oil companies — roughly three dozen in total since 2017, all making similar arguments but with differing claims and defendants — are winding their way through state courts around the country. Exxon Mobil and Suncor last month petitioned the Supreme Court to revisit a decision by Colorado’s highest court allowing Boulder’s lawsuit to continue.
The Supreme Court has previously declined several requests to take up the cases, perhaps because they remain in early stages. None has gone to trial yet. After years of procedural fights over whether they belong in federal or state courts, some are now advancing. Nevertheless, any trials quite likely remain years away, if they ever happen.
The companies have fought to have the cases dismissed outright or moved out of state court and into federal court, where they are seen as more likely to prevail. But federal judges, including at the appellate level, have largely rejected these attempts.
Brittany Pemberton, an energy industry lawyer and partner at the law firm Bracewell, said that the outcomes so far in courts were “already a bit of a patchwork quilt,” particularly on the complex issue of whether federal or state courts are the right place for cases like these. She expects the Supreme Court to intervene once the cases are further along.
In January, in fact, the U.S. Supreme Court declined to hear the Honolulu case, which was filed in 2020.
Both sides have had wins and losses in court. A judge in Charleston, S.C., recently dismissed that city’s suit, calling it an attempt to regulate out-of-state emissions through litigation. Supporters of the judge’s decision have noted that it followed dismissals of cases filed by Bucks County, Pa., and New Jersey, among other places.
But in other states, high courts have ruled that lawsuits there can proceed. Three state supreme courts have affirmed lower-court decisions allowing cases to continue, specifically those filed by Boulder, Colo., Honolulu and Massachusetts.
In the Boulder case, the state Supreme Court ruled, 5-2, that the plaintiffs were not trying to curb interstate emissions of greenhouse gases (which are subject to federal, not state, jurisdiction), but rather they were seeking compensation for harm caused by climate change. In other words, Boulder’s lawsuit, filed in state court, wasn’t pre-empted by federal law — countering a major argument that the energy companies have made.
But in the dissent, Justice Carlos Samour Jr. urged the nation’s highest court to take up the issue given the growing number of municipalities filing similar claims. He cited a previous ruling by the Second Circuit Court of Appeals, in a different case, concluding that litigation over climate change fell beyond the bounds of state laws, as well as previous Supreme Court rulings that bolstered his position.
The next court hearing to watch will come in October, when the Maryland Supreme Court is expected to hear an appeal brought by Baltimore after its case was dismissed by a lower-court judge. The Justice Department submitted an amicus brief in that case in July, urging the justices to affirm the dismissal.
Conflicting rulings from judges around the country could eventually spur the Supreme Court to weigh in. But the in the meantime, Republican attorneys general are intensifying their efforts to stop the cases wholesale.
The liability shield they have proposed for fossil fuel companies is modeled on a 2005 law that protects gun manufacturers from litigation when their guns are used in crimes.
Several attorneys general who signed the letter did not respond to requests for comments about it, nor did several Republican leaders in Congress. Industry groups have said an immunity shield is not their first priority.
Still, the idea has already met resistance from environmental groups and local governments. “It’s a nonstop effort by the oil and gas industry to somehow get a get-out-of-jail-free card in regard to these cases,” said Richard Wiles, president of the nonprofit Center for Climate Integrity, which supports the litigation.
This year, nearly 200 nonprofit groups signed a letter to Democratic leaders asking them to oppose a liability shield.
And, over the summer, the National Association of Counties, which includes more than 3,000 counties, passed a resolution opposing “any legislation that would limit or pre-empt counties’ access to courts or give companies immunity from lawsuits over damages and costs.” The resolution noted that extreme weather events were straining municipal budgets and resources.
“There’s growing harm to all corners of the country,” said Brigid Shea, commissioner of Travis County, Texas, who sponsored the resolution. “And yet, there hasn’t been the political will to take the actions necessary. So accessing the courts is one of the few tools in our toolbox.”
Karen Zraick covers legal affairs for the Climate desk and the courtroom clashes playing out over climate and environmental policy.
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