Donald Trump’s re-election has “turbocharged” climate accountability efforts including laws which aim to force greenhouse gas emitters to pay damages for fueling dangerous global warming, say activists.
These “make polluters pay” laws, led by blue states’ attorneys general, and climate accountability lawsuits will be a major front for climate litigation in the coming months and years. They are being challenged by red states and the fossil fuel industry, which are also fighting against accountability-focused climate lawsuits waged by governments and youth environmentalists.
On day one of his second term, the US president affirmed his loyalty to the oil industry with a spate of executive actions to roll back environmental protections and a pledge to “drill, baby, drill”. The ferocity of his anti-environment agenda has inspired unprecedented interest in climate accountability, said Jamie Henn, director of the anti-oil and gas non-profit Fossil Free Media.
“I think Trump’s election has turbocharged the ‘make polluters pay’ movement,” said Henn, who has been a leader in the campaign for a decade.
More state lawmakers are writing legislative proposals to force oil companies to pay for climate disasters, while law firms are helping governments sue the industry. And youth activists are working on a new legal challenge to the Trump administration’s pro-fossil fuel policies.
Industry interests, however, are also attempting to kill those accountability efforts – and Trump may embolden them.
The state of Vermont in May passed a first-of-its-kind law holding fossil fuel firms financially responsible for climate damages and New York passed a similar measure in December.
The policies force oil companies to pay for climate impacts to which their emissions have contributed. Known as “climate superfund” bills, they are loosely modeled on the Environmental Protection Agency (EPA)’s Superfund program.
Similar bills are being considered in Maryland, New Jersey, Massachusetts and now Rhode Island, where a measure was introduced last week. A policy will also soon be introduced in California, where recent deadly wildfires have revived the call for the proposal after one was weighed last year.
Minnesota and Oregon lawmakers are also considering introducing climate superfund acts. And since inauguration day, activists and officials in a dozen other states have expressed interest in doing the same, said Henn.
“I think people are really latching on to this message and this approach right now,” Henn said. “It finally gives people a way to respond to climate disasters, and it’s something that we can do without the federal government.”
Progressives introduced a federal climate superfund act last year. But with Republicans in control of the White House and both branches of Congress, it has a “less than zero chance of passing”, said Michael Gerrard, the faculty director of the Sabin center for climate change law at Columbia University.
The state laws are already facing pushback in the courts. This month, 22 red states and two oil trade groups sued to block New York’s climate superfund law.
“This bill is an attempt by New York to step into the shoes of the federal government to regulate something that they have absolutely no business regulating,” West Virginia’s attorney general, John B McCuskey, who led the suit and whose state is a top coal producer, told Fox News.
In late December, trade groups also filed a lawsuit against Vermont’s climate superfund act which, if successful, could potentially topple New York’s law.
Fossil fuel interests were expected to challenge the climate superfund laws even if Kamala Harris was elected president and have been boosted by Trump’s win. “I think [they] feel like they have more of a shot with the executive backing them,” said Cassidy DiPaola, spokesperson for the Make Polluters Pay campaign.
It “would not be shocking” if Trump’s justice department were to file briefs in support of plaintiffs fighting the laws, said Gerrard, which could tip the scales in their favor.
More legal challenges may also be on the way, and if additional states pass similar policies, they are expected to face similar lawsuits. But Henn says he is confident the laws will prevail.
“I think Republicans think that they’re going to be able to just scare off local legislators or local attorneys general from pursuing a polluter pays agenda, but I think they’re wrong,” he said. “We have widespread public support for this approach. People don’t like the fossil fuel industry.”
Over the last decade, states and municipalities have also brought more than 30 lawsuits against fossil fuel interests, accusing them of intentionally covering up the climate risks of their products while seeking damages for climate impacts.
As Trump’s pro-fossil fuel policies move the US in “precisely the wrong direction” on the climate crisis, they will “surely inspire yet more litigation”, said Gerrard. Michigan has announced plans to file a suit in the coming months, and more are likely to be rolled out this year.
The cases face a formidable opponent in the fossil fuel industry, which has long attempted to fend off the lawsuits. Since January, courts have dismissed litigation filed by New Jersey, New York and a Maryland city and county, saying the states lacked jurisdiction to hear the cases.
Other decisions have been positive for the plaintiffs. In three decisions since spring 2023, the supreme court turned down petitions from the fossil fuel industry to move the venue of the lawsuits from the state courts where they were originally filed, to federal courts which are seen as more friendly to the industry.
Last week, a court in Colorado heard arguments over the same issue in a lawsuit filed by the city of Boulder. The outcome will have major implications for the future of the challenge.
Trump has pledged to put an end to the wave of lawsuits, which he has called “frivolous”. During his first term, his administration filed influential briefs in the cases supporting the oil companies – something his justice department could do again. “It’s clear where their allegiances are,” said Gerrard. “And if they file briefs that would be good for the defendants.”
Alyssa Johl, vice-president and general counsel of the Center for Climate Integrity, which tracks and supports the lawsuits, said: “There is still a long road ahead for these efforts, but the path forward is clear.”
“As communities grapple with the increasingly devastating consequences of big oil’s decades-long deception, the need for accountability is greater than ever,” she said.
Youth-led litigation
Another climate-focused legal movement that is gaining steam: youth-led challenges against state and federal government agencies, for allegedly violating constitutional rights with pro-fossil fuel policies.
Trump’s second term presents an important moment for these lawsuits, said Julia Olson, founder of the law firm Our Children’s Trust, which brought the litigation. While some lawyers will fight each rollback individually, her strategy could “secure systemic change”, she said.
On Wednesday, a US judge rejected an Our Children’s Trust suit filed by California youth against the EPA, saying the challengers failed to show that they had been injured by the federal body. Olson said the judge “misapplied the law”.
That same day, the most well-known Our Children’s Trust case, Juliana v United States – in which 21 young people sued the federal government – suffered a blow. In December, the plaintiffs filed a petition with the supreme court to send the case back to trial after it was tossed out. The US solicitor general has now filed a brief opposing their petition; Olson said it “mischaracterized” the case.
Our Children’s Trust’s lawsuits have in other instances seen major victories. In December, Montana’s supreme court upheld a landmark climate ruling in favor of young plaintiffs, which said the state was violating youths’ constitutional right to a clean environment by permitting fossil fuel projects with no regard for global warming.
That victory in a pro-fossil fuel red state, said Olson, inspires hope that children could win a lawsuit against a conservative, oil and gas-friendly federal government.
She is working on another lawsuit against the Trump administration, whose “brazen” anti-environment agenda could bolster the challengers’ arguments, she said.
“These policies will kill children … and by making his agenda obvious, I think that he helps us make that clear.”
Source: US Politics - theguardian.com
