The Perversity and Unconstitutionality of Climate Superfund Laws: When Political Myopia Reigns Supreme
The unconstitutionality of climate superfund laws shows that they are more the product of political myopia than an attempt to help the environment.
Money grabs by politicians and ideological interest groups are nothing new, but the spate of recent proposals for climate “Superfund” laws — attempting to blame and tax the fossil energy producers for many billions of dollars for the purported adverse effects of anthropogenic (caused by emissions of greenhouse gases (GHG)) climate change — truly are in a class by themselves. Vermont and New York already have such laws on the books, and similar ones have been proposed in California, Connecticut, Massachusetts, Maryland, New Jersey, and Rhode Island. The New York law, for example, will require fossil energy producers to pay about $75 billion over the next twenty-five years to pay for “the cost of climate adaptation,” according to New York Governor Kathy Hochul.
Superfund Laws: A Legal Gambit in Search of a Legal Problem
Let us begin with the obvious truth that, for at least a century, the production, sale, and use of fossil fuels have been and remain legal. Such economic activities are subject to an array of federal and state environmental laws and regulations, and no one argues that the fossil energy industry has failed systematically to comply with those requirements. GHG emissions related to fossil fuels primarily are the result of consumption rather than production, but the various Superfund laws and proposals ignore the role of consumption, instead for obvious political reasons blaming the producers for the asserted effects of GHG emissions. Surprise! The Superfund penalties are a tax; there is no plausible argument to the contrary, and such taxes imposed upon producers will be borne by consumers to a substantial degree in the immediate term, and entirely over the longer term.
The Unconstitutionality of Superfund Laws
Let us shunt aside the reality that state governments themselves are major consumers of fossil energy, as well as the reality that all state governments subsidize the consumption of fossil energy by low-income individuals and households. The Superfund laws and proposals are far worse than mere hypocrisy; they are blatantly unconstitutional. Because they are retroactive, penalizing commercial activities that were (and remain) legal, they are obvious examples of ex post facto lawmaking, specifically proscribed in Article I, Section IX of the constitution, and by the Fourteenth Amendment. The laws also are likely to represent bills of attainder, also proscribed in Article I, Section IX, and most state constitutions, in that they “delineate a small subset of actors, mostly fossil fuel producers, [as] … significant contributors to climate change, leaving millions of other contributors untouched … without a judicial trial.”
It gets worse. The Superfund laws and proposals do not even attempt to tie the past and ongoing legal activities of the fossil energy producers to any purported climate damage in the respective states. Are the targets not entitled to their day in court? If we apply the Environmental Protection Agency’s database on U.S. GHG emissions, under the most expansive definitions of fossil energy emissions, we find that all such U.S. emissions (fossil production systems and fossil fuel consumption) in 2023 were about five billion metric tons, out of a global total of about fifty-three billion metric tons. If we apply the EPA climate model under assumptions fully consistent with the findings reported in the peer-reviewed literature, the temperature impact by 2100 of all those U.S. fossil energy emissions is 0.083°C. Because the standard deviation of the surface temperature record is 0.11°C, that effect would not be detectable. And so the claims by the state politicians about the climate damage caused by the fossil energy producers are balderdash.
The “Climate Crisis”
And about the “climate crisis” justification for the Superfund proposals: Notwithstanding the ubiquitous claims that such a crisis is upon us or looming large, there is no evidence — none — of any such “crisis.” Even the Intergovernmental Panel on Climate Change (IPCC) in its Sixth Assessment Report (Table 12.12) concedes implicitly that there is no such crisis, as every predicted adverse effect of increasing atmospheric concentrations of greenhouse gases (GHG) is driven by one scenario, “representative concentration pathway 8.5.” IPCC notes (p. 238) that “the likelihood of high emissions scenarios such as RCP8.5 or SSP5-8.5 is considered low…” In reality, RCP8.5 is essentially impossible.
There is little trend in the number of “hot” days since 1895; eleven of the twelve years with the highest number of such days occurred before 1960. (This is because standard textbook atmospheric physics predicts not a substantial increase in high temperatures, but instead an increase in low temperatures, in that the warming effects of GHG emissions will take place primarily in the coldest, driest air masses — Siberia and western north America — in the winter.) The U.S. Climate Reference Network data show no temperature trend over the available 2005–2023 reporting period. Global mean sea level has been increasing at about 3.3 mm per year since satellite measurements began in 1993, or about thirteen inches over the course of a century — an outcome very unlikely to prove a “crisis.”
The arctic sea ice has been declining, but the degree to which anthropogenic GHG emissions are the cause is wholly unclear. There is no long-term trend in the Antarctic sea ice. U.S. tornado activity for all EF (“Enhanced Fujita”) scale classes shows an no trend since 1950. The data for the period since 1970 for EF-3+ tornadoes show a downward trend. Tropical cyclones and accumulated cyclone energy show no trend since satellite measurements began in the early 1970s.
The number of U.S. wildfires shows no trend since 1985. Wildfire acreage has increased, but that has nothing to do with GHG emissions; it is the result of perverse forest management practices, for the most part taking place in government forests. Global acreage burned declined sharply for 1998-2015, and by about eighteen percent for the period 2003-2015 as reported by NASA. The Palmer Drought Severity index shows no trend for the United States since 1895. There is no global drought trend over the last 120 years, and for 1950-2020 the trend is downward (Figure 2). U.S. flooding over the past century is uncorrelated with increasing GHG concentrations. IPCC in the AR6 reports low confidence (p. 1568) in the responsibility of atmospheric GHG concentrations for observed changes in the magnitude or frequency of floods at the global scale. The available data do not support the ubiquitous assertions about the dire impacts of declining pH levels in the oceans.
Yet More Issues With the Superfund Laws
Back to the legal weaknesses of the Superfund laws: Law Professor Donald J. Kochan notes that there are myriad such problems, among which “is the valid claim that the Clean Air Act preempts and therefore makes void state laws like these. Similarly, because the laws allow one state to in effect control energy production in other states, there are colorable claims that the Dormant Commerce Clause is violated.” That is no obscure matter. Newly elected West Virginia Attorney General J.B. McCuskey, leading a coalition of twenty-two state attorneys general, filed a lawsuit against New York over the state’s new law.
There is an amusing dimension to the climate Superfund money grab: The state of New York now is attempting to recruit former federal government employees to fill “some of the state’s 7,000 public-sector job openings. It featured a cartoon of a pointing Statue of Liberty alongside the slogan: ‘New York Wants You.’”
Conclusion
If only such policymakers as Governor Hochul were as interested in preserving a favorable business climate and private sector employment. The Superfund gambit, because there is no reason in principle that it must be limited to only the fossil energy producers, threatens everyone. That is the harsh reality of the Superfund money grab: It is the gift that keeps on taking.
Benjamin Zycher is a senior fellow at the American Enterprise Institute.
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