“With nearly every record rainfall, heatwave, and coastal storm, New Yorkers are increasingly burdened with billions of dollars in health, safety, and environmental consequences due to polluters who have historically harmed our environment,” Hochul said in a statement.
“This landmark legislation shifts the cost of climate adaptation from everyday New Yorkers to the fossil-fuel companies most responsible for the pollution,” Hochul added.
New York’s Climate Change Superfund Act is modeled after the “polluter pays” principle contained in the original 1980 Superfund law, which said parties held responsible for contributing to toxic pollution sites would be liable for cleanup. But treating carbon dioxide (CO2) emissions from the production and combustion of fossil fuels the same way as contamination from, say, a long-abandoned mine is comparing apples with oranges.
CO2 – whether manmade or natural – is not a pollutant; indeed, today’s rising atmospheric levels of CO2 are highly beneficial to life, both fauna and flora. One of the surest ways to lower agricultural productivity is to adopt climate policies that reduce atmospheric CO2. Furthermore, attributing weather events such as heavy rain, droughts, heatwaves, cold snaps, and coastal storms to use of fossil fuels is purely speculative. Nowhere in the New York statute is a cause-and-effect relationship established.
Hochul and her fellow Democrats in Albany are not interested in such matters; their agenda is extortion. Instead of paying to upgrade the state’s roads and bridges – not to mention New York City’s crumbling subway system – with higher taxes on already overtaxed New Yorkers, shaking down oil and gas companies looks like an easy way out. Under the new law, companies that emitted over 1 billion metric tons of carbon dioxide between 2000 and 2018 will be held to account. How much each company will have to cough up will be determined by state bureaucrats. As many as three dozen or more, led by ExxonMobil and Chevron, will have to pay up.
Vermont passed its own version of the climate Superfund law last summer, and similar legislation is under consideration in California, Massachusetts, and Maryland. Using state and local tort laws to replenish depleted government coffers in the name of remediating damage said to result from climate change may be a bridge too far legally. The effort suffered a setback in 2021, when the Second Circuit Court of Appeals dismissed a New York City lawsuit targeting fossil fuel producers. As recently noted by the Wall Street Journal, the court held that state tort law could not be used “to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions.”
Further clarity on applying state tort law to global greenhouse gas emissions may have to come from the U.S. Supreme Court. The court is considering whether to hear Sunoco LP v. City and County of Honolulu. Sunoco, an oil company, was sued by the City and County of Honolulu for its alleged impact on the climate. In a petition filed in May 2024 with the Supreme Court, attorneys for the company argued that the case against Sunoco was unconstitutional.
“The Hawaii Supreme Court held that the state law can impose liability for injuries allegedly caused by the effect of interstate and international greenhouse-gas emissions on the global climate,” the brief reads. “The Second Circuit, considering materially identical claims, rejected such a breathtaking, extraterritorial application of state law. Other courts, too, have declined to apply state law extraterritorially to regulate transboundary pollution. The question is whether the unique phenomenon of global climate change licenses states to ignore the structure of our constitutional system and extend state law beyond their borders is at the heart of the climate-change litigation currently ongoing nationwide. The Court’s intervention is urgently needed.”
A decision from the Supreme Court on whether to hear the case is expected in early 2025. In the meantime, blue states – anticipating that the incoming Trump administration will roll back a slew of federal green energy policies – will attempt to build a firewall to preserve as much of their climate agenda as the courts allow.
Bonner Russell Cohen, Ph. D., is a senior policy analyst with the Committee for a Constructive Tomorrow (CFACT).
