BOSTON — In the midst of legal challenges and industry opposition to existing climate “superfund” laws, a Massachusetts coalition is increasing pressure on lawmakers to make large fossil fuel corporations “pay their fair share” for climate-related damages.
The Make Polluters Pay Coalition on Tuesday delivered more than 7,500 signatures to top Democrats in support of bills (S.588, H.1014) aired at a September hearing that would create a “climate adaptation superfund” — a pool of funding that advocates say would generate around $25 billion for climate adaptation projects by making large fossil fuel companies financially liable for years of greenhouse gas emissions.
“Right now, taxpayers are paying 100% of the costs. That’s not just a rhetorical line. That’s a literal reality felt by all of the cities and towns across Massachusetts that are having to adjust to extreme heat, flooding, storm surges, increased diseases, fires and all of the other impacts that climate [change] is leading to,” said Dan Zackin, legislative coordinator for the Better Future Project and 350 Mass.
The U.S. Justice Department in May filed legal challenges against superfund laws in Vermont and New York, calling them “expropriative.” The DOJ filed motions for summary judgment in its challenges of the two laws.
The DOJ wrote in its Vermont motion that Vermont “is defying federal law, the Constitution and binding precedent” by imposing a superfund law. Around $75 billion would be collected by New York’s law, according to the DOJ, which wrote in its motion that the state “has declared war on those responsible for supplying our nation with reliable and affordable energy, and it is trampling over federal law in the process.”
The complaints were filed, according to the DOJ, “to advance President Donald J. Trump’s executive order to protect American energy from state overreach.” Trump’s April order states his administration’s commitment to “unleashing American energy, especially through the removal of all illegitimate impediments to the identification, development, siting, production, investment in or use of domestic energy resources — particularly oil, natural gas, coal, hydropower, geothermal, biofuel, critical mineral and nuclear energy resources.”
The Massachusetts bill would require fossil fuel companies that are responsible for more than 1 billion tons of greenhouse gas emissions created between 1995 and 2024 to be charged a proportional share of total climate change adaptation costs estimated by state government. At least 40% of the funds would have to be spent on Environmental Justice communities.
Individuals representing the energy industry have said the laws are fraught with technical and legal challenges, calling the concept of superfund legislation “a carbon tax by another name.”
“It’s trying to use a state-level policy to create, and I guess, react to, global change, both to create a fund for the remediation, but also to create disincentives for companies to invest in fossil fuels,” Ian Banks, a research fellow at the Conservative Coalition for Climate Solutions, said during a panel discussion in June.
“While the laws name a few companies for their responsibility in producing fossil fuel products that would eventually go on to create emissions, we are the ones — we being the whole global community, but particularly those of us who have interacted in the economy of New York or Vermont over the past 30 years … who are responsible for creating those emissions,” Banks continued.
But Zackin argued that the concerns about whether states have the authority to enact the laws are based on whether the law would regulate emissions, which he said is not the goal of the bills in Massachusetts or elsewhere.
“There are some valid questions about how we make sure that we do this in a way that is constitutional and just and equitable,” Zackin said. “But the lawsuits are so clearly lawfare from the fossil fuel industry, and they’re going after the concerns around due process and the commerce clause that are exactly what we’ve been preparing for for years.”
The Associated Industries of Massachusetts also remains opposed to the legislation, after its Vice President of Government Affairs Samuel Larson wrote to lawmakers in September that the bill is “legally dubious.” He warned that it would have “massive repercussions on the state’s economy,” cost the fossil fuel industry more than $70 billion for activity that was historically legal, and “significantly increase the costs of living and doing business in Massachusetts to a degree that could devastate the state’s economy.”
Asked about business-based concerns, Zackin said they were “Associated Industries of Massachusetts working very directly for the fossil fuel industry.”
“This is not all businesses across Massachusetts. This is a select few of activist corporate entities who are working to make sure that they face no accountability for the costs that they’re imposing,” Zackin said. “Actual businesses across Massachusetts are paying these costs. They’re paying for when their business gets flooded or burnt or there’s smoke damage or extreme heat and they have to pay those extra energy bills.”
Rachael Boyce, climate justice and resilience manager for Better Future Project, said that the resources to address the needs of communities struggling to adapt to the impacts of climate change are “wildly insufficient,” and that the superfund would help address those insufficiencies.
“I’ve been working on this campaign for two years, and in that time, I’ve heard countless objections from our elected officials over the climate superfunds’ constitutionality and economic impacts. But zero concern for the actual impacts of climate change on communities across the commonwealth,” Boyce said.
“Our legislators want to verbally spar over legal precedent and economic theory — essential questions, absolutely we should have those conversations, but there is no shortage of expert testimony to assuage those concerns,” Boyce continued. “They are failing to acknowledge and address climate change’s real impact on our jobs, our financial security and our health.”
Bill co-sponsor Sen. Michael Moore posted on social media Tuesday that climate superfund advocates delivered signatures to his office, describing the bill as one that would “require polluters to set aside dollars for those affected by extreme weather — a burden that currently falls on taxpayers.”
Lawmakers face deadlines this year for an initial decision about the Sen. Jamie Eldridge and Reps. Steven Owens and Patrick Lewis bills. Almost 50 representatives and 16 senators have signed on as cosponsors. The Committee on Environment and Natural Resources, co-chaired this session by Sen. Rebecca Rausch and Rep. Christine Barber, last year ordered an earlier version of the bill to a dead-end study.