Paralyzed by negative partisanship, Congress is unable to craft regulatory legislation to tackle climate change by limiting greenhouse gas (GHG) emissions. As the costs of climate change grow larger with increasing atmospheric concentrations of carbon, and become more evident to more people in more places, others try to fill the void left by Congress. But their efforts are no substitute for congressional policymaking.

When Democratic Party presidents try to address the climate problem, most of their initiatives last only until the next Republican president occupies the White House. And executive branch action has been further hobbled by the Supreme Court’s West Virginia v. EPA decision in 2022, which probably “strips the EPA of the power Congress gave it to respond to the most pressing issue of our time” (as the dissenting justices put it).

For example, when it goes final, the Biden Administration’s proposed rule restricting GHG emissions from power plants will will have to overcome at least four statutory interpretation hurdles under the Clean Air Act.[i]  Even if the odds of overcoming each hurdle are good – say, 75% — the cumulative odds of overcoming them all [0.754 = 0.32] are not. That fact may be one reason why the EPA is considering weakening the rule before it goes final. And of course, a Republican victory in November would render all of these questions moot.

So states, local governments, and private sector actors have stepped into the breach. The number of states charting a course to net zero emissions has reached double digits, and the numbers of U.S. municipalities and corporations pledging aggressive action to limit emissions are in the hundreds. These are positive developments because all averted emissions avert future climate harm; but they are ad hoc, piecemeal, and otherwise jurisdictionally limited.

Local government efforts are sometimes preempted by federal or state law, as in the cases of bans on natural gas hookups in buildings in Berkeley, CA and Brookline, MA, respectively.  Net zero pledges have their own potential problems – see here, here and here. And while state governments do have the authority to transform their electricity generation mixes, most of the “blue” states acting aggressively on this issue tend to have relatively clean electricity already.

Congress’ inability to address complex national problems like climate change prompts “last resort” efforts that have a low probability of success, diverting resources that might have been better spent elsewhere.

A recent example of a low-probability initiative is the movement to create state “climate Superfund” laws, led by the State of Vermont.  The 1980 federal Superfund law authorized the EPA to hold companies connected to inactive hazardous waste sites liable for cleaning up those sites. The proposed Vermont law would enable the state to do what climate lawsuits against fossil fuel companies have been unable to accomplish: namely, recover from those companies the massive costs incurred by states and local governments to respond to the harms caused by climate change.

But the analogy to the federal law is strained — at least as it would apply to well-heeled extraction companies — for reasons I wrote about 25 years ago. The federal Superfund law imposes strict, retroactive liability on companies that “arranged for disposal” of the hazardous substances in question. The imposition of that sort of draconian liability passed constitutional muster because the statute ties liability to causation; indeed, courts have insisted that “arranger” liability be interpreted in ways that avoid imposing liability on companies whose actions did not constitute “arranging for disposal.” In that context, imposition of strict retroactive liability is remedial, requiring the liable parties to address a problem they caused (or helped to cause).

Fossil fuel extraction companies sell their product to others who combust it, producing emissions. Even though that combustion is foreseeable, and even though some funded disinformation campaigns about climate science, those companies have a strong argument that they lack the necessary causal link to the problem. The better analogy to the federal Superfund program, they will argue, is not to “arrangers for disposal” but to providers of products used by others, who have consistently been excluded from federal Superfund liability.

Thus, like so many other attempts to fill the massive void left by a dysfunctional Congress, climate Superfund statutes face a lot of headwinds in their effort to effect meaningful pro-climate change. All of these efforts are a distant second best to national legislation directing or specifically authorizing a transition to a net zero future. Unless and until voters insist that their representatives in Congress address the problem by regulating GHG emissions, we will have to live with second best. – David Spence

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[i] For Clean Air Act wonks, those hurdles include the claim (i) under Section 111 of the statute that CCUS and hydrogen blending are not “adequately demonstrated,” considering costs, (ii) that Section 111(d)’s carve-out for emissions from sources regulated under section 112 prohibits its use to regulate GHG emissions from coal-fired power plants, (iii) states’ use of their authority under Section 111 to consider “remaining useful life” and “other factors” to undermine EPA’s emissions reductions goals, and (iv) the argument that the rule addresses a “major question” without explicit statutory authority to do so under the West Virginia decision.