Environmental groups argued in court that by rolling back a bedrock climate change legal ruling, the Trump administration weakened its attack on the landmark state climate change liability law.
The Trump administration’s Justice Department asked a judge to strike down Vermont’s first 2024 “Climate Superfund” policy that would require major polluters to pay damages for past global warming pollution, in part because federal law, not state law, governs greenhouse gas emissions. But last month, the Trump administration’s Environmental Protection Agency (EPA) withdrew its findings on the endangerment, saying the science gave federal authorities the power to control the very pollutants.
“They’re trying to get both sides of the story,” said Kate Sinding Daly, senior vice president of law and policy at the conservation law foundation (CLF), an environmental law nonprofit.
While the administration cannot argue that the federal government’s ability to enact greenhouse gas regulations interferes with states’ ability to pass climate Superfund laws, it does argue that the federal government lacks legal authority to regulate emissions, CLF and advocacy group Northeastern Vermont Organic Farmers Association argued in a recent federal court filing aimed at defending Vermont’s climate Superfund law. (Both the EPA and the Department of Justice declined to comment on the new application.)
“We believe that withdrawing the endangered status designation was a mistake and that we were wrong to claim that we did not have the authority to regulate greenhouse gases,” Daly said. “But if they say that, they won’t be able to stop other countries from doing the same thing.”
That’s the argument legal experts expected in the wake of the final reversal of the crisis certification, and one that could apply to the defense of dozens of climate-change lawsuits brought by cities and states against Big Oil.
“We hope that revocation of the jeopardy finding will play an important role in countering preemption claims in all of these cases,” said Michael Gerrard, founder of the Sabin Center on Climate Change Law at Columbia University School of Law.
Similar arguments are made in a letter New York Attorney General Letitia James filed in federal court on Tuesday defending both Vermont’s policy and the Climate Action Fund law passed in New York last year, but the EPA and Justice Department declined to comment on the letter.
EPA argued that the repeal of its hazard certification applied only to motor vehicle emissions. He also said the Clean Air Act “continues to preempt” state greenhouse gas laws and regulations regardless of the repeal of the crisis designation.
“The Clean Air Act completely prevents states and political branches from adopting or enforcing emissions standards for new vehicles or engines, regardless of whether the EPA has issued standards for specific emissions,” an agency spokesperson told the Guardian last month.
But Daly and other climate and legal experts say the agency’s final rule also strips the federal government of its authority to control greenhouse gas pollution from stationary sources such as power plants and fossil fuel facilities, eliminating the possibility that federal law could block state regulation of any sector.
Daley said states should be able to legally regulate greenhouse gases from all sources, even if they are certified as endangered.
“In fact, we had previous administrations proposing rules to regulate greenhouse gas emissions from automobiles and to regulate the power sector, while some states (required) emissions reductions,” she said.
Also, Daley said Vermont’s Climate Superfund should not have been considered preempted by federal law because it does not seek to directly control future emissions, but only imposes costs on past emissions. But she added that the withdrawal of the endangerment finding would make pre-emption claims particularly difficult to challenge in court.
“This argument is the exact opposite of the argument for reversing endangered status,” she said.
Grace O’Dell, executive director of the Northeast Vermont Organic Farming Association, said the stakes in the fight to protect the Climate Fund Act are high.
“It is becoming increasingly clear that federal leaders do not have a coherent plan to adapt to the climate crisis,” she said. “Farmers are bearing the weight of extreme weather events, and it makes sense for fossil fuel companies to help with the costs of climate adaptation.”
A public hearing on the Justice Department’s attack on Vermont’s climate change funding law will be held on March 30 via livestream.
Modeled after the EPA’s Superfund program, which requires companies to pay for cleaning up toxic waste, climate Superfund laws passed in Vermont and New York would charge big fossil fuel companies for damages caused by past emissions.
Other states are considering similar policies, including Connecticut, Maine, Rhode Island, New Jersey and Illinois.
The potential impact of this damning discovery on fossil fuel allies’ preemption claims could also ripple through climate change liability litigation, including dozens of lawsuits filed by cities and states accusing big oil companies of climate change fraud. The Supreme Court last month agreed to hear a petition by energy producers seeking to dismiss such a lawsuit brought by Boulder, Colorado, arguing that federal law should preempt the claims.
Environmental and public health groups have sued the EPA over the agency’s revocation of the agency’s endangered status designation. California and Connecticut have also vowed to sue over the rollback.
