By reversing a key climate legal determination, the Trump administration has undermined its attacks on a groundbreaking state climate liability law, environmental groups have argued in court.
The Trump Justice Department has asked a judge to strike down a first-of-its-kind 2024 Vermont “climate super fund” policy that requires major polluters to pay for damages caused by their past planet-warming pollution, in part because that federal law, not state law, governs greenhouse gas emissions. But last month, Trump’s Environmental Protection Agency (EPA) revoked the hazard finding, the scientific determination that gives federal officials the authority to monitor those same pollutants.
“They’re trying to talk out of both sides of their mouths,” said Kate Sinding Daly, senior vice president of law and policy at the Conservation Law Foundation (CLF), a nonprofit environmental legal organization.
The administration cannot claim that the federal government’s ability to enact greenhouse gas regulations precludes states’ authority to pass climate superfund laws while claiming it has no legal authority to regulate emissions, CLF and the advocacy group Northeastern Vermont Organic Farming Association asserted in a recent federal court filing aimed at defending Vermont’s climate superfund law. (Both the EPA and the Justice Department declined to comment on the new filing.)
“We believe that the overturning of the hazard determination was erroneous, that they were wrong to say that they do not have the authority to regulate greenhouse gases,” Daly said. “But if they’re going to say that, then they can’t stop states from stepping in and doing the same thing.”
It’s an argument that legal experts anticipated would be made in the wake of the repeal of the final endangerment ruling, and that could also apply to defenses to the dozens of climate lawsuits filed by cities and states against Big Oil.
“I hope that the reversal of the endangerment ruling will play a leading role in countering the preemption claim in all of these cases,” said Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School.
A similar line of reasoning appeared in a letter filed in federal court on Tuesday by Letitia James, New York’s attorney general, defending both Vermont’s policy and a climate superfund law passed by New York last year. The EPA and the Justice Department declined to comment on the letter.
The EPA has stated that the repeal of its hazard determination applies only to motor vehicle emissions. He has also said that the Clean Air Act “continues to preempt” state greenhouse gas laws and regulations, regardless of the repeal of the hazard determination.
“The Clean Air Act prevents states and political subdivisions from adopting or attempting to enforce emissions standards for new vehicles and engines, period, whether the EPA has issued standards for particular emissions or not,” an agency spokesperson told The Guardian last month.
But Daly and other legal and climate experts say the agency’s final rule also eliminated the federal government’s authority to control greenhouse gas pollution from stationary sources like power plants and fossil fuel facilities, eliminating the ability for federal law to preclude state regulations in any sector.
Even with the endangerment determination, states should be able to legally regulate greenhouse gases from any source, Daly said.
“In fact, we had previous administrations regulating greenhouse gas emissions from vehicles and proposing rules to regulate the energy sector, at the same time we had states (also requiring) emissions reductions,” he said.
And federal law should never have considered Vermont’s climate superfund to be prioritized because it doesn’t directly attempt to control future emissions, but only to impose costs on past emissions, Daly said. But repealing the endangerment determination should make it especially difficult for the preemption argument to hold up in court, he added.
“The argument is diametrically opposed to the argument for repealing the danger ruling,” he said.
Grace Oedel, executive director of the Northeastern Vermont Organic Farming Association, said the stakes are high in the fight to protect climate superfund laws.
“It is increasingly clear that our federal government leaders do not have a coherent plan to adapt to the climate crisis,” he said. “Farmers are bearing the brunt of extreme weather events and it’s only fair that fossil fuel companies help pay the cost of climate adaptation.”
A livestreamed hearing on the Justice Department’s attacks on Vermont’s climate superfund law will be held on March 30.
Modeled after the EPA’s Superfund program, which requires companies to pay for toxic waste cleanups, the climate Superfund laws passed by Vermont and New York charge major fossil fuel companies for damages caused by their past emissions.
Other states, including Connecticut, Maine, Rhode Island, New Jersey and Illinois, are considering similar policies.
The potential impact of the danger finding on the preference arguments of fossil fuel allies could also affect litigation over climate liability, including the dozens of lawsuits filed by cities and states accusing major oil companies of climate deception. Last month, the Supreme Court agreed to hear a petition from energy producers seeking to dismiss one such case brought by Boulder, Colorado, arguing that federal law should prevail over the claims.
Environmental and public health groups have sued the EPA over its repeal of the hazard finding. The states of California and Connecticut have also pledged to sue over the rollback.
