State climate efforts are facing an uphill battle. With the federal government abdicating on climate issues, various states are looking to tackle the crisis. The most promising efforts are happening in the courts, where plaintiffs are suing heavy emitters for damages caused by climate change. There are also state laws attempting to impose liability. New York and Vermont both passed climate change superfund laws. These laws seek to hold heavy emitters financially responsible for climate change. Shortly after its passage, New York’s Climate Change Superfund Act was challenged in court. Proceedings have now concluded at the district court level, which ruled against the state. The court relied on precedent set by the Second Circuit in 2021 barring state climate tort suits. A recent Hodgson Russ memo gives details:
“Chief Judge Brenda K. Sannes concluded that the Climate Change Superfund Act is materially indistinguishable from the state-law climate damages claims rejected in City of New York. There, the Second Circuit held that claims seeking compensation for harms caused by global greenhouse gas emissions implicated uniquely federal interests, including the need for uniform national energy and environmental policy and basic principles of federalism.”
The court’s analysis leans heavily on the 2021 appeals court ruling. This likely leaves the future of New York’s Climate Change Superfund Act in the hands of the Supreme Court. This fall, the Supreme Court will hear oral arguments in Suncor Energy (U.S.A.) v. Commissioners of Boulder County. That case is expected to resolve the constitutionality of state climate tort cases. The Second Circuit may revisit it’s 2021 decision if the Supreme Court allows state tort suits. Such a decision would undermine the basis of the district court’s opinion and may revive New York’s Climate Change Superfund Act. However, at this juncture, it appears unlikely SCOTUS will rule in favor of climate suits.
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