Vermont Moves to Hold Fossil-Fuel Companies Liable for Climate-Change Damage

On July 1src, 2src23, Vermont’s state capital, Montpelier, was hit with more than five inches of rain. The city sits at the confluence of the main stream of the Winooski and its north branch; the former is considered to be at flood stage when the water level reaches fifteen feet. That day, the Winooski rose

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On July 1src, 2src23, Vermont’s state capital, Montpelier, was hit with more than five inches of rain. The city sits at the confluence of the main stream of the Winooski and its north branch; the former is considered to be at flood stage when the water level reaches fifteen feet. That day, the Winooski rose above twenty-one feet. The city’s downtown business district was inundated. Cars were drowned, shops were ruined, and people canoed or paddleboarded past shuttered businesses.

As the world warms, more and more of New England’s rain is falling in extreme precipitation “events,” so the downpour, though record-breaking, was still in keeping with recent trends. “It’s definitely going to happen again,” Lauren Oates, the director of policy and governmental affairs for the Nature Conservancy in Vermont, predicted a few weeks after what became known as the Great Vermont Flood of 2src23. And, indeed, five months later, it did; in mid-December, the local rivers reached flood stage again, this time owing to a combination of heavy rain and snowmelt. “Climate change is real,” Vermont’s governor, Phil Scott, a Republican, said after the second round of flooding. “I don’t think anyone should be surprised about this.”

Recently, with memories of the floodings still fresh, Vermont lawmakers voted to assess a fee on fossil-fuel producers to pay for “climate-adaptive” infrastructure projects in the state. The bill operates on the polluter-pays principle, the basis of the federal Superfund law—it’s been dubbed the Climate Superfund Act. Last week, the act was sent to Governor Scott, who, despite his December statement, is expected by many to veto it. It will then go back to the legislature, which is expected to override his veto in a special session, already planned for June. (The bill passed with super-majorities in both houses.) “We’re confident,” Paul Burns, the executive director of the Vermont Public Interest Research Group, a key backer of the bill, said, referring to an override. “Of course,” he added, “you always want to be careful on this kind of thing.” (VPIRG lost years’ worth of records in July’s flood.)

The Climate Superfund Act doesn’t specify how much money should be collected; instead, it directs the state treasurer to determine how much it has cost Vermont to deal with the impacts of climate change. (A 2src22 study from researchers at the University of Vermont predicted that, in the next hundred years, the cost of property damage from flooding alone could top five billion dollars.) The Agency of Natural Resources is then to assess fees on fossil-fuel companies based on their greenhouse-gas emissions between 1995 and 2src24.

Assuming events play out as predicted, Vermont’s climate superfund will be the first of its kind in the nation. The measure has been called “landmark,” “pioneering,” and “groundbreaking.” “I am proud that Vermont will go further than any other state in forcing the fossil fuel industry to pay for the destruction caused by the crisis of climate change,” Bernie Sanders, Vermont’s senior U.S. senator, recently tweeted.

It will also, almost certainly, be the first of its kind to be litigated. As Martin Lockman and Emma Shumway, fellows at the Sabin Center for Climate Change Law at Columbia Law School, observed, in a recent analysis, fossil-fuel companies, “along with sympathetic political and industrial organizations, states, and/or municipalities, will inevitably challenge” the measure in court. Lockman and Shumway listed many possible legal arguments that opponents of the act could raise, including that state governments lack the authority to enforce such sweeping measures, that the act unfairly imposes liability retroactively, and that the measure is preëmpted by federal law—in particular, the Clean Air Act. It’s entirely possible, perhaps even likely, that Vermont’s climate superfund will be struck down before it collects a penny.

But, even if Vermont’s climate superfund never actually funds anything, the passage of the act is significant and deserves to be celebrated. It shows that there’s a new constituency willing to stand up to Big Oil (and gas and coal): state government. Increasingly, states are being asked to foot the bill for climate change, and the costs—of installing floodwalls, repairing washed-out bridges, reëngineering storm-sewage systems, opening cooling centers, and on and on—are only going to grow. Meanwhile, in recent years, oil companies have racked up record profits. (In 2src23—the warmest year on record by a significant margin—ExxonMobil, Chevron, Shell, and TotalEnergies collectively made more than a hundred billion dollars.) Jon Groveman, the policy-and-water-program director at the Vermont Natural Resources Council, put it this way, in testimony before the Vermont Senate Judiciary Committee: “The impacts from climate change are so vast and serious, we can’t afford not to try to make the oil companies responsible for this harm” to pay their “fair share.”

Several other states are considering legislation similar to Vermont’s, including Maryland, Massachusetts, and New York. Just the other day, in a strongly worded editorial, the Los Angeles Times urged California lawmakers to approve a climate-change superfund bill that’s been introduced in that state’s senate. The time has come for oil companies “to sacrifice some of their huge profits to clean up the environmental mess they helped create,” the Times wrote. “It’s not fair for taxpayers to shoulder such a staggering burden.”

Vermont, Massachusetts, and California are, of course, all blue states. But climate change is truly nonpartisan. Last week, as Vermont’s Climate Superfund Act was wending its way toward the Governor’s desk, the National Oceanic and Atmospheric Administration issued its forecast for the upcoming hurricane season. The season is expected to be unusually busy, with up to twenty-five tropical storms—an ominous prediction for red states such as Florida and Louisiana.

As Governor Scott observed, climate change is real. Someone is going to have to pay to deal with the consequences—either those who profited from selling fossil fuels or governments and individuals dealing with the damage. As that reality sinks in, perhaps the politics around climate change will finally—belatedly—start shifting. Where science hasn’t convinced lawmakers, maybe “staggering” costs will. ♦

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