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CERCLA / Climate Change

Navigating Environmental Jurisdiction: DOJ’s Challenge to State Climate Superfund Laws

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The U.S. Department of Justice filed lawsuits against New York and several other states, challenging their newly enacted state Superfund laws (Superfund lawsuits). The laws aim to address the environmental damages attributed to climate change by requiring fossil fuel companies to contribute to state-managed funds designated for climate adaptation and cleanup efforts. The lawsuits raise questions about state and federal authority to regulate environmental matters.

Climate Superfund laws at the state level are modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or federal “Superfund.” Federal Superfund law intends to manage and remediate contaminated sites by using a “polluter pay” model. This requires Potentially Responsible Parties (PRPs) to clean up or reimburse costs. When a PRP cannot be found or is deemed insolvent, the federal Superfund Trust Fund, funded by excise taxes on “hazardous” chemicals, finances the cleanup.

State laws like New York’s 2024 Climate Change Superfund Act expand the concept to include broader environmental costs not currently covered under CERCLA. This includes climate change damages, flood prevention, infrastructure resilience, and public health initiatives.

 DOJ’s Superfund lawsuits allege that state-level Superfund laws violate the Commerce Clause by seeking to regulate activities that fall under federal jurisdiction, contradicting existing federal policies and interfere with the federal government’s authority under the Clean Air Act and exclusive power over foreign affairs. Specifically, they impose state-specific strict liability for worldwide activities and intend to build a $75 billion fund for New York’s infrastructure projects paid for by out-of-state entities.

 On January 20, Executive Order 14156 declared an energy emergency, concluding that the United States’ “insufficient energy production, transportation, refining, and generation constitutes an unusual and extraordinary threat to our Nation’s economy, national security and foreign policy.” The Superfund lawsuits are part of a broader federal initiative, specifically, Executive Order 14260, Protecting American Energy from State Overreach, directing Attorney General Pamela Bondi to challenge state laws that are “perceived to hinder domestic energy production and national energy policy,” in response to the energy emergency.

 State officials and environmental groups criticized the DOJ’s actions, arguing that the states have the right to protect their residents from climate change and hold polluters accountable. They contend the state laws are a necessary response to the increasing costs of climate-related environmental damage. The offices of New York Gov. Kathy Hochul and Attorney General Letitia James both released public statements opposing the federal government’s claims, expressing a strong belief that those who contribute to the climate crisis should also contribute to its restoration.

These developments underscore the delicate balance between state and federal authorities over the appropriate level of regulation. As these cases progress through the courts, they will likely set important precedents regarding the extent of state power in environmental regulation and the evolving interpretation of federalism in the context of climate policy.

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