Country’s Second-Smallest State Takes Big Swing at Big Oil

Tiny little Vermont is going after the fossil fuel industry. The state enacted a law on Thursday night known as the Climate Superfund Act, modeled in part on the EPA’s federal Superfund program that requires responsible companies to clean up and pay for their pollution. The idea here is that major greenhouse gas emitters have contributed measurable amounts of climate change-related damage to Vermont’s citizens, and thus should pay for those damages. It is the first state to pass such a law.

“This groundbreaking legislation marks a significant shift in the effort to make polluters pay,” said Cassidy DiPaola, of the advocacy group Fossil Free Media, during a call with reporters on Friday. “It’s a classic David vs. Goliath fight, with states and advocates taking on the powerful fossil fuel industry.”

The law had tri-partisan support in the state legislature — along with Democrats and Republicans there is a significant Progressive Party presence in Vermont. Governor Phil Scott, a Republican, did not sign or veto the bill, meaning it became law without his signature after five days on his desk.

“This does mark a new era in the way that we hold fossil fuels accountable,” said Paul Burns, executive director of the Vermont Public Interest Research Group, an advocacy group that helped lead the charge on the Superfund law. He said the extreme flooding the state saw last summer — bad enough for the National Weather Service to dub it the Great Vermont Flood of 2023, which killed 13 people and caused several billion dollars in damages — along with subsequent flooding in December worked as a wake-up call.

“This made, I think, our legislators recognize that holding fossil fuel companies accountable was not just the right thing to do but the righteous thing to do,” Burns said on the press call.

Along with the general principles behind the EPA’s Superfund program, the law itself was also modeled off a failed piece of federal legislation in 2021 that would have established a Polluters Pay Climate Fund. With the failure at the federal level, states began planning their own similar approaches. In Vermont’s case, the law will eventually establish a total liability for companies responsible for at least one billion metric tons of greenhouse gas emissions, based on actual damages the state has suffered between 1995 and 2024, plus projections of future damage. That’s likely to encompass the usual suspects — ExxonMobil, Shell, Chevron, and all our other familiar pals.

“That kind of retroactive liability that’s involved here — it has been upheld time and time again,” said Elana Mihaly, vice president of the Conservation Law Foundation Vermont. “Especially where it’s clear, as is the case here, that responsible parties knew, or should have known, about the threats their products pose to public health and to the environment.”

The law will inevitably spur legal challenges from Big Oil. But as one expert on the press call pointed out, they’re unlikely to do so very soon: suing to stop the law would essentially mean the companies have to admit they will qualify to be penalized under it, before such a list of qualified companies has been officially compiled.

Also, because other states including New York, Massachusetts, and California have been considering similar legislation, the American Petroleum Institute has offered previous testimony that more or less laid out some of their legal strategies to oppose them; that meant Vermont legislators could actually craft the language and specifics of the law in a way intended to thwart the lawsuits. Not that this will stop the behemoths from trying, of course.

“We expect big oil to try to shirk accountability with sort of throwing spaghetti at the wall, any number of legal claims,” said Anthony Iarrapino, also of CLF Vermont. Those claims could be related to the federal Clean Air Act and issues relating to the Due Process clause of the 14th Amendment, among others.

Given Vermont’s small size, with a population bigger than Wyoming but smaller than every other state and even the District of Columbia, the actual dollar values here aren’t going to send shivers down any Chevron executive’s spine. But the precedent is a fascinating one, especially when much bigger markets — like, say, world’s fifth-largest economy, California — may soon follow suit.