New York Times: Amanda Halter Comments on the Spread of Climate “Superfund” Bills

The new laws take their name and liability structure from the long-standing federal Superfund program, which requires responsible parties to fund environmental remediation. In the climate context, however, the state laws seek to allocate certain climate-associated costs to companies based on historical greenhouse gas emissions. The laws have prompted legal challenges from the U.S. Department of Justice, industry groups and other states, raising questions regarding federal preemption, extraterritorial reach, retroactive liability and constitutional limits on state authority. Meanwhile, legislation is pending in several other states, including Maine, Illinois and New Jersey.

Halter noted that while it was predictable that some states would look to Superfund as a template, the analogy becomes legally strained when applied to climate change.

“The climate-change topic is so much broader in terms of geography,” she said, which “runs headlong into issues of international, federal and state authority.”

To learn more about emerging climate change “Superfund” legislation and related litigation, see Pillsbury’s Climate Superfund Map here.