New York Becomes Second State To Pass Superfund Pollution Law – CleanTechnica

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On December 26, 2024,New York Governor Kathy Hochul signed landmark Superfund legislation that bolsters the state’s efforts to protect and restore the environment. The new law requires large fossil fuel companies to pay for critical projects that protect the citizens of New York by creating a Climate Superfund that will pay for projects that increase the state’s resiliency to climate impacts such as flooding and extreme heat.

“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 that have historically harmed our environment,” Hochul said. “Establishing the Climate Superfund is the latest example of my administration taking action to hold polluters responsible for the damage done to our environment and requiring major investments in infrastructure and other projects critical to protecting our communities and economy.”

What The Superfund Law Does

The Climate Superfund law shifts the cost of climate adaptation from the citizens of New York to the fossil fuel companies who are most responsible for the pollution. By creating a Climate Change Adaptation Cost Recovery Program, the law ensures that those companies contribute to the funding of critical infrastructure investments such as coastal protection and flood mitigation systems to enhance the climate resilience of communities across the state.

New York State Department of Environmental Conservation Interim Commissioner Sean Mahar said, “Holding polluters accountable for the damages they cause is essential to New York’s environmental protection efforts, and I commend Governor Hochul for signing this historic climate legislation into law. By ensuring those responsible for historic climate-altering emissions bear the costs of the significant health, environmental, and economic impacts already being passed on to New Yorkers, this law will complement the State’s efforts to reduce greenhouse gas emissions, help communities adapt to the climate-driven impacts experienced today, and leverage the significant investments the Governor is making in climate resilience.”

State Senator Liz Krueger, one of the primary sponsors for the new law, said, “The Climate Change Superfund Act is now law and New York has fired a shot that will be heard round the world. The companies most responsible for the climate crisis will be held accountable. Too often over the last decade, courts have dismissed lawsuits against the oil and gas industry by saying that the issue of climate culpability should be decided by legislatures. Well, the Legislature of the State of New York — the 10th largest economy in the world — has accepted the invitation, and I hope we have made ourselves very clear.

“The planet’s largest climate polluters bear a unique responsibility for creating the climate crisis and they must pay their fair share to help regular New Yorkers deal with the consequences. There’s no question that those consequences are here and they are serious. Repairing from and preparing for extreme weather caused by climate change will cost more than half a trillion dollars statewide by 2050. That’s over $65,000 per household, and that’s on top of the disruption, injury, and death that the climate crisis is causing in every corner of our state. The Climate Change Superfund Act is a critical piece of affordability legislation that will deliver billions of dollars every year to ease the burden on regular New Yorkers.”

$75 Billion Over 25 Years

Bloomberg says the new law will require the state’s top polluters to pay an estimated $75 billion over 25 years to help New York’s infrastructure better withstand flooding and other climate-related events. Bill sponsors say that amount is a small fraction of the hundreds of billions the state will need for climate remediation through 2050. New York has now joined Vermont in enacting climate Superfund legislation.

The American Petroleum Institute, which represents about 600 members of the industry, condemned the law. “This type of legislation represents nothing more than a punitive new fee on American energy, and we are evaluating our options moving forward,” an API spokesperson said in an email to Bloomberg.

Fossil fuel companies found to be responsible for more than 1 billion tons of greenhouse gas emissions from 2000 to 2018 are on the hook, according to the law. Payments will be managed by a state fund and dispersed equitably. State regulators must determine over the next year how to identify responsible parties and their share of expenses, register those parties under the program, and issue cost recovery demands.

“Big Oil is making a killing off climate disaster—but now, in New York they’ll be on the hook for their damages,” Eric Weltman, Food & Water Watch’s New York senior strategist, said in a statement. “New York State is on the leading edge of polluter pays legislation, redirecting corporate profits into public coffers, and investing in the climate resiliency efforts we need to survive worsening climate chaos.” Maryland, Massachusetts, and California are also considering climate Superfund laws to manage mounting infrastructure costs.

Let The Legal Wrangling Begin

Those bills are modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), known as the Superfund law, and will almost certainly result in lawsuits filed by the  fossil fuel industry. Those legal challenges will claim that federal law preempts state action pursuant to the Supremacy Clause of the Constitution. CleanTechnica readers will notice right away that right wing extremists always say things should be left to the states to decide when it is convenient for them — education, abortion, and border protection are common examples to get the “states rights” treatment. But when it is not so convenient — like California setting its own emissions rules or states trying to protect their children from being murdered by lunatics with assault rifles — then they sing out of the other side of their mouths and claim the states are powerless to enact legislation that conflicts with federal law.

The Supreme Court will inevitably be drawn into the fray but the fossil fuel companies may not get the results from the  court they are hoping for. The Supreme Court has ruled consistently that suits filed by states and cities in state courts should be heard in state courts, which is one small reason to hope that state Superfund laws will survive any legal challenges, but courts have a way of delaying things longer than most people would believe. If nothing else, the industry will try to drag the court proceeding out as long as possible while they continue raking in their obscene profits.

A Word From Joseph Stiglitz

Bill McKibben wrote after the New York Superfund bill was signed that the oil companies are trying to say it will raise gas prices for New Yorkers, but that’s not how the cost of oil works. As Joseph Stiglitz, who has a Nobel Prize in economics, pointed out recently,

The specific attributes of the global oil market preclude price increases resulting from the Climate Change Superfund assessments. The price of crude oil is set by the global market, based on the global balance of supply and demand. Individual companies cannot directly raise the price of crude even if it would be in their interest to do so. The price of gasoline at the pump, derived from crude oil, is set by a combination of global crude prices, refining costs, distribution and marketing costs, and local taxes and fees. The Superfund assessment does not impact any of those factors, as it is assessed too far upstream to impact local costs, and is far too small and affects too limited a universe of companies to impact global prices.

Some might argue that the New York Superfund law is not the most elegant solution to the problem. Senator Liz Krueger, the legislator who really pushed the measure forward in the New York legislature, agrees. She told the Wall Street Journal last summer, “Look, would I prefer this all be done at the federal level? Yes. But the states have learned over the last few years, we can’t count on the federal government to do these things for us.”

Conservative are always screaming that the states should be free to set their own policies — a notion that goes all the way back in US history to post-colonial days when southern states wanted the right to keep slavery legal if they decided to join the proposed new union. Now some states are doing precisely that and those same conservative voices are full of reproach and indignation. Politics means never having to apologize for egregious hypocrisy, apparently.