With federal climate action in a seemingly constant state of flux, some states are coming up with their own regulations. Local climate Superfund laws, modeled after a federal Superfund law, would require fossil fuel companies to pay for their role in exacerbating climate change. But the laws face a steep road ahead, with the oil industry and leaders from Republican-led states mounting a swift backlash.

“People are going to be looking to [states] because they’re not going to be getting a lot of traction from the federal government for climate resiliency funds,” said Democratic representative Steven Owens, who is sponsoring a climate Superfund bill in Massachusetts this coming legislative session. “We’re anticipating that we’re going to have to do this on our own.” 

Meanwhile, Vermont passed a Superfund law in May 2024, and New York passed a similar law in December. Maryland has also reintroduced a Superfund bill for its 2025 legislative session, and New Jersey and California are currently considering bills. 

The state laws are modeled after the landmark 1980 federal Superfund law, which created a trust fund financed by a tax on the petroleum and chemical industries to pay for the cleanup of hazardous waste sites. They operate under the polluter-pays principle, a concept in environmental law that requires bad actors to pay for the costs of pollution attributed to their activities. 

Support for the laws has gained momentum as both lawmakers and climate activists push for fossil fuel companies to help shoulder the burden of the climate crisis. In the fall, climate justice groups like Fridays for Future lobbied lawmakers to advance the Climate Change Superfund Act. Activists delivered thousands of petitions to New York governor Kathy Hochul and organized protests at the New York State Capitol building in Albany. 

On December 26, Governor Hochul signed the New York law, which seeks to recover $75 billion from major oil and gas companies, dispersed in $3 billion increments over 25 years. It will only target major polluters—any company that the state determines is responsible for more than 1 billion tons of global greenhouse gas emissions. In Vermont and Maryland, working groups are currently calculating how much the polluters will owe. 

Climate disasters have already cost states billions of dollars in damages and will continue to become more costly with more severe weather and sea level rise. In New York, from 1980 to 2024, there were 95 climate disasters that each exceeded $1 billion in damages, according to the National Oceanic and Atmospheric Administration. By 2050, the cost of repairing damages and preparing for extreme weather in New York will exceed half a trillion dollars, according to a statement from New York state senator Liz Krueger. 

While many lawmakers argue that the Superfund laws will simply make fossil fuel companies pay what they owe, some Big Oil companies claim the laws are unfair. On December 30, the US Chamber of Commerce and the American Petroleum Institute sued the state of Vermont. The two groups argue that the state’s law is unconstitutional and that it’s preempted by the federal Clean Air Act. 

The Vermont lawsuit was entirely expected, said Elena Mihaly, who leads the Conservation Law Foundation in Vermont. “It was a calculated part of what we knew would be the journey to eventually holding them accountable for the damage their products have caused in Vermont and beyond.”  

Some of the claims appear “threadbare and desperate,” Mihaly said. “We just believe that we’ve created a really sound record and that the law is defensible and it is distinguishable from the Clean Air Act.” The difference, Mihaly said, is the Superfund law will help Vermont pay for damages that have already happened. The Clean Air Act, on the other hand, is focused on regulating carbon emissions. 

New York’s law is also facing legal challenges. On February 6, lawmakers from 22 other states, all with Republican attorneys general, sued the state, challenging the constitutionality of the law and claiming that it would devastate energy producers. West Virginia, a top producer of coal, led the coalition of attorneys general. “This lawsuit is to ensure that these misguided policies, being forced from one state onto the entire nation, will not lead America into the doldrums of an energy crisis, allowing China, India, and Russia to overtake our energy independence,” West Virginia attorney general JB McCuskey said in a statement. “If we allow New York to get away with this, it will only be a matter of time before other states follow suit—wrecking our nation’s power grid.” 

However, Rachel Rothschild, an assistant professor of law at the University of Michigan Law School, said the laws don’t try to hold fossil fuel companies responsible for national or global greenhouse gas emissions. They are only trying to assist with the local harms in the particular state. “The bills are, in my view, actually somewhat conservative, in the sense that they’re not asking the companies to fund all of the costs that we’re going to need to incur to adapt to climate change, but just to pay some fair share of what those costs are expected to be,” Rothschild said. 

Rothschild said she doesn’t know how the courts will react to these lawsuits, but some legal precedents may inform potential rulings on Superfund bills. In its complaint against the Vermont law, the American Petroleum Institute argued that the law is unconstitutional because it’s retroactive. But existing hazardous waste laws at both the state and federal levels hold companies liable for polluting activities they engaged in as far back as the 1950s. The Vermont Superfund law only goes back to 1995, and the New York law goes back to 2000—a much more limited look-back period. 

There’s also evidence that these companies had knowledge of their role in climate change by the 1990s and early 2000s. In the 1980s, major oil companies like Shell and Exxon conducted internal assessments of the impacts of fossil fuels on the environment. A 1988 report by Shell, The Greenhouse Effect, indicates that the company was aware of the oil and gas industry’s role in contributing to climate change. 

In some ways, these companies were on notice, Rothschild said. “You can drive your car down the street, but if you crash into somebody and you cause an accident, you could be liable for the damages,” she said. “It’s the same type of principle here. If you’re operating a fossil fuel company and you have awareness and knowledge, or you should have, given what was happening at the time, you should expect to face potential liability, either through legislation or through lawsuits.” 

In addition to backlash from the oil industry, climate Superfund bills also face some skepticism from state legislators. There are some misconceptions about the bill, said Senator Katie Fry Hester (D-Md.), who is sponsoring the Responding to Emergency Needs From Extreme Weather (RENEW) Act in Maryland. Some say it might hurt business in Maryland or make energy bills higher for residents. But the top five polluters are not from Maryland, she said, and polluters can’t pass the cost on due to anti-trust laws. And some may paint it as a carbon tax, but Hester said it’s a one-time payment for damage caused between 1994 and 2024. “We’re not asking consumers to give us money every time they pull into the gas station.” 

Maryland lawmakers are working to make the bill more “passable” by altering some aspects that were unpopular when it was previously introduced. The biggest change this time is requiring a study to calculate the amount that polluters owe, Hester said, instead of making a rough estimate. 

In Maryland, Superfund bills already have federal support. On January 9, Senator Chris Van Hollen (D-Md.) reintroduced the Polluters Pay Climate Fund Act, which requires the largest polluters to pay into a $1 trillion fund that would be used to finance various efforts to tackle climate change. As climate disasters become more severe and costs become higher, states will need “every tool in our arsenal to help us claw back some of the damages we are owed due to the fossil fuel companies,” said Representative Owens of Massachusetts.

“We’re buoyed by the success in New York, and we’re obviously watching our neighbor states very closely,” he said. “We are happy to work together to try to hold these fossil fuel companies accountable for the damage to the climate.”