SEPT/OCT 2025 ENVIRONMENTAL LAW REPORTER 55 ELR 10493
THE FUTURE OF
CLIMATE SUPERFUND LAWS
by Sarah McGovern
Sarah McGovern is a 2025 graduate of William & Mary Law School and a law clerk for
the Hon. Andrew L. Teel in U.S. District Court for the Northern District of Indiana.
The emerging state “Climate Superfund” laws pres-
ent a much-needed solution to a challenging prob-
lem. As climate change has progressed, numerous
plaintis have tried yet so far failed to hold fossil fuel pro-
ducers accountable for their products’ emissions and the
resulting damage to their communities. e Vermont and
New York Climate Superfund laws that establish a statu-
tory framework for climate liability attempt to resolve this
problem, requiring companies to pay for the cost of various
climate change-related disasters across those states.
At the beginning of 2025, industry and certain states
led two separate lawsuits against Vermont and New
York, challenging their respective Climate Superfund
laws. e two complaints raise nearly identical claims,
and both are governed by law in the U.S. Court of
Appeals for the Second Circuit. e outcome there may
likely be determined by the precedent established in City
of New York v. Chevron Corp., in which the court found
that New York City could not apply state nuisance law
to recover damages for greenhouse gas (GHG) emissions
under principles of federal preclusion and preemption by
the Clean Air Act (CA A).1
is Comment analyzes four claims raised in the com-
plaints, which present robust constitutional questions, and
concludes that the new laws may likewise be struck down
in that circuit due to issues of federal preclusion and pre-
emption. Although the court may well nd that no Due
Process Clause or Commerce Clause issues are implicated,
it need only nd one constitutional problem to invalidate
the state laws at issue. Whi le these Climate Superfund laws
will likely not surv ive review in the Second Circuit, similar
state laws may survive review elsewhere.
Since New York and Vermont passed their Climate
Superfund laws, at least 10 other states have moved for-
ward with similar bills in jurisdictions spanning the fed-
eral circuits.2 In places not burdened by holdings like City
of New York, creative lawyers may have an opportunity
to convince courts of these laws’ constitutionality and
the urgent need for Climate Superfunds. Although the
1. 993 F.3d 81, 91-92 (2d Cir. 2021).
2. Rachel Rothschild et al., Examining State Climate Superfund Legislation,
55 ELR 10251 (June 2025), https://www.elr.info/articles/elr-articles/
examining-state-climate-superfund-legislation.
legal ght is just beginning, the fact remains that states
increasingly bear an ever-growing nancial burden of cli-
mate change, and the U.S. Congress continues to remain
silent in relieving it. Given this reality, we should expect to
see increasing pressure on courts to address this harm by
upholding Climate Superfunds, regard less of the outcome
in the Second Circuit.
is Comment begins with background on the pitfalls
of climate change-related litigation, highlighting how this
has paved the way for state Climate Superfund laws. Part
II provides an overview of the New York and Vermont laws
and their embodiment of the “polluter-pays” concept. Part
III analyzes current legal challenges to these laws, includ-
ing the plaintis’ federal preclusion, CA A preemption,
and Due Process Clause and Commerce Clause claims,
and nds that, at least in the Second Circuit, the suits
will likely be found to be precluded and preempted by the
CAA. Part IV suggests that creative lawyers in other states
or circuits may have an opportunity to convince the cour ts
of these laws’ constitutionality and the u rgent need for Cli-
mate Superfunds. Part V concludes.
I. Background
As climate change has progressed, numerous plaintis
have tried and so far failed to e stablish legal liability for the
resulting damage to their communities. Given the mount-
ing harm associated with climate change, state legislatures
are now looking to other legal tools for recovery. is
trend has given rise to the Vermont and New York Climate
Superfund laws, which establish a statutory framework
for climate liability, thus creating a path for those states
to recover from climate-related harm outside of the con-
straints of tort law.
One early case exemplifying the failure to hold fossil
fuel producers accountable in federal court wa s Native Vil-
lage of Kivalina v. ExxonMobil Corp., where Alaska villag-
ers brought a public-nuisance claim for climate change a nd
the subsequent harmful rise in sea levels.3 e U.S. Court
of Appeals for the Ninth Circuit found the case posed a
political question, since the court would have to determine
a number for a reasonable amount of emissions to then
determine liability, running afoul of the separation of pow-
ers.4 us, the case was nonjusticiable and the court never
3. 696 F.3d 849, 853 (9th Cir. 2012).
4. See id. at 854, 858.
Author’s Note: The author would like to thank Prof. Steven
Miskinis for his feedback and guidance in the drafting and
editing process.
Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org
