June 12, 2024
Long viewed as a playground for environmentalists, Vermont has jumped the climate change shark with its new Climate Superfund law. If not halted by judges who reject its dubious legal basis, this shark promises to deliver a severe blow to the state’s economy that will harm the “ordinary Vermonters” proponents claim the law will help.
The new law is modeled after the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, which created a “Superfund” to clean up hazardous waste sites. Under the original Superfund law, companies and any predecessors that dumped hazardous wastes are required to pay the actual cleanup costs for those sites.
In contrast, under the Vermont law, U.S. fossil fuel producers and their successors—companies that mined coal, produced natural gas, and extracted and refined crude oil over the 30-year period between 1995 and the end of this year, and whose carbon-equivalent emissions are estimated to have been over one billion metric tons over that period—will be required to pay into a state-administered fund for the climate “damages” caused by those fuels’ ultimate consumers. Had this same logic applied to the original Superfund law, the government would have forced chemical manufacturers to pay the cleanup costs, rather than the companies that dumped them.
Once the damages are determined, the liability from each company’s fossil fuel production will be apportioned based on the company’s share of total world emissions. To take a simple example, if between 1995 and 2024 a company refined crude oil that, when combusted, emitted one billion tons of carbon dioxide, and over the same period total world carbon dioxide emissions totaled 800 billion tons, then the company would be allocated 1/800th of the total estimated damages to Vermont.
In addition to placing liability on U.S. energy producers, rather than end users, there are two fundamental problems with the law. First, it is impossible to determine that “climate change” caused any individual weather-related events. For example, last summer, Montpelier, the state capital, was devastated by a flood, which proponents of the new Vermont law claim was caused by climate change. Yet, the town was similarly devastated almost a century ago, in 1927. Was that the result of climate change, too? In fact, a 1964 publication by the U.S. Geological Survey chronicles hundreds of New England floods between 1620 and 1955, including the 1927 one. Were these all caused by climate change, too? If not, then when did those New England floods begin to be caused by climate change?
This same cause-and-effect problem applies to other alleged damages, whether a poor maple syrup season, lousy snow at the state’s ski areas, or even a summer when the black flies are especially hungry. None can be credibly attributed to burning fossil fuels. Moreover, how will natural variability be accounted for? Will burning fossil fuels, for example, be “credited” if a maple syrup season was better than average or if Vermont ski areas had an especially good year?
Despite the impossibility of attributing specific events to burning fossil fuels, the State Treasurer’s office will be required to issue a report in January 2026 that estimates the alleged damages climate change caused the state over the 30-year period and estimates future damages. This leads to the second fundamental problem: How will the Treasurer’s office credibly estimate those damages?
Curiously, the state’s bond issuances, which the Treasurer’s office also oversees, make no mention of damages from climate change posing an economic risk to the state that could limit future repayments. Even the most recent bond issuance in September 2023, which discusses the economic risks posed by recovery from the Covid pandemic, does not mention any financial risks posed by climate change. Yet, just four months later, the Climate Superfund bill was introduced, with much fanfare about how climate change has already devastated the state.
The nonsensical estimates of climate-related damages to Vermont belie the real economic damages that will be done to the state’s economy. The first consequence will be higher energy prices. Fossil fuel producers will recoup their costs through higher prices, which sellers (e.g., gasoline stations, heating oil wholesalers, natural gas distribution companies) will recover from consumers. Unlike the presumed damages to the state from climate change, higher energy prices will have immediate and destructive impacts on the state’s economy and beyond.
Other states are looking hungrily at the law, hoping to enact similar legislation. But imagine if the entire country enacted similar legislation, as many environmentalists want. Last year, U.S. energy-related CO2 emissions were about 5 billion metric tons. Using the Environmental Protection Agency’s most recent SCC value, about $200/ton, the resulting “damages” are $1 trillion. Over the past 30 years, the damages would have been around $30 trillion. If, over that time, the U.S. emitted an average of about one-fourth of world CO2—it’s down to about 15% because China’s emissions have increased rapidly–then U.S. energy companies collectively would owe over $7 trillion.
No company could pay its share of that amount because it would all be bankrupt if it tried, and no companies would purchase the assets because then they would be liable. The entire scheme would soon collapse. And if fossil fuel producers actually stopped producing fossil fuels, as some environmentalists demand, the U.S. economy—and modern life as we know it—would be wrecked.
Vermont’s new law ought to be viewed for what it is: a shakedown to benefit the state’s favored constituents at the expense of the public.
Jonathan Lesser is a senior fellow with the National Center for Energy Analytics and the president of Continental Economics.
This article was originally published by RealClearEnergy and made available via RealClearWire.
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At least Vermont doesn’t have to worry about sea level rise.
Or global warming.
They could get tsunami’s like Germany ! 😉
That’s funny. I was actually going to add that to my comment but just stopped at SLR.
Gee, an ex post facto law! Why not tithing to Gaia?
Liability is not prohibited by a law being ex post facto. That principle is well established under Federal law which has been repeatedly upheld by SCOTUS, as in the matter of the Superfund hazardous waste liability law. Even the current SCOTUS is unlikely to reverse that.
But ex post facto is not the real threat to this law – see my comment elsewhere in this thread. States cannot regulate air pollution unless the EPA grants them authority to do so under the 1990 Clear Air Act Amendments. But Congress never granted EPA authority to regulate carbon in the 1990 CAA, and on that basis any attempt by EPA to grant authority to an individual state to regulate carbon, as a clear end around on Congress, the current SCOTUS will surely overturn it once an appropriate case comes before the court.
What constitutional limits apply to “civil” law are quite confused and contradictory.
The USEPA is part of the Executive Branch, not The Legislative Branch of the US government.
It (or any other bureaucracy) do not have the authority to enact a “regulation” that goes beyond the actual intent of a Law.
Neither can go beyond the intent of The Constitution or The Bill of Rights.
That’s where SCOTUS is supposed to come in.
Long past the time for Congress to reexamine the wording of The Clean Air Act and The Clean Water Act. A bureaucracy has gone way beyond it’s intended purpose.
“Intent” is a rather ambiguous term when it comes to legislation or the constitution, though people have been arguing that for a very long time. Who is to say what anyone’s intent is – it’s always a subjective judgment.
Congress enacted the Clean Air Act in 1970, and then amended it in 1990, using its authority under the Constitution to regulate interstate commerce. Air goes wherever it will, and thus crosses state borders. Pollution is emitted by industries as a matter of commerce. The Supreme Court has upheld that authority of Congress.
Even the current conservative SCOTUS did not challenge Congress’s authority when it overruled EPA on its regulation of unconnected wetlands. The court held that while Congress has the right to regulate wetlands that are connected to waters that pass state lines under the Constitution’s commerce clause, EPA’s action clearly exceeded what Congress actually authorized.
EPA has repeatedly exceeded its authority, and the current SCOTUS is reeling back that authority, decision by decision … and that’s almost certainly what will happen with the Vermont law and any attempt by EPA to authorize a state law under CAA restricting carbon emissions.
The wheels of justice take a long time to turn, but turn they will.
SCOTUS pays too much attention to “precedent” rather than the original Law of the Land.
(The persistent wet spot in your backyard might be declared a “navigable waterway” and therefore falls under the interstate commerce clause?!?)
Perhaps instead of “intent”, I should have said something like “the definitions of the words used at the time they were used”?
(I’m sure the Library of Congress has a collection of very old dictionaries with the definitions and, maybe, the context of the times in which they were used?)
Repeating myself, all a new Republican majority congress and POTUS need do is define the Waters of the US “navigable” to some minimum draft and width like 4 ft deep and 20 feet wide, 99.9% of the time and atmospheric CO2 as NOT A POLLUTANT REGULATABLE BY ANY FEDERAL OR STATE ENTITY, and such definition to apply to all laws and regulations both federal and state. Add, any attempt by any person to circumvent theses definitions, including governors and legislators of the states, shall be a felony with a MINIMUM 10 year sentence, and no judge may lessen such sentence, and any attempt to do so will be a felony with a minimum of a 10 year sentence. Any injunction of such sentence by an appellate court shall be a felony for any judge voting for such an injunction, with a minimum 10 year sentence.
I don’t think we’re really disagreeing with each other.
Congress needs to reign in the authority of the Executive Branch’s agencies and SCOTUS needs reign in both when they’ve gone beyond their Constitutional authority.
Are we both on the “same page”?
An example, Scotus didn’t rule that CO2 actually was a pollutant, Only that if the EPA declared it was then, under “The Clean Air Act”, The EPA can regulate it.
Something very wrong there. An agency was given the authority to regulate (regulations that have the effect of Law) whatever that agency wants to regulate?
But I want accountability for the leftists who will continually attempt to do what they want, not what the law says.
As a “code enforcement” person, when the local jurisdiction deleted sections of a code, making it less restrictive than the base code, I did not fight to enforce the deleted section. I just enforced what was the code, which of course means the law.
Of course when it comes to the SCOTUS, they need to undo 100 years of phony rulings that do not find any basis in the constitution.
As I have also mentioned many times before, the “commerce clause” expansion in the 30s stretched that clause far beyond the constitutional intent and is why almost every department in the US government exists.
I once heard that in training people to spot counterfeit money, they don’t focus on the latest ploy by rather the original (the real thing). That way they can spot the differences between the real and the newest ploy.
Agreed! The agencies are out of control. The Air Resources Board here in California have few if any scientists in leadership roles and they spend (waste) a lot of our tax dollars
As I’ve read from posters on Tom Nelson’s X page:
Climate change: Where the weather is always your fault and the only solution is communism (or more of it.)
It’s never been anything more than a lever for control.
Nice! I like Tom’s YouTube channel. No BS. He starts by mentioning the name of his guess- it quickly jumps to the guest who rapidly introduces himself- then they’re off and running. The way to do a podcast, in my opinion. He should have a few million subscribers. The fact that he doesn’t is one reason I have doubts about how much progress climate skeptics are making.
Yeah … I want to talk about the Vermont Yankee nuclear power plant that was shut down not too many years back.
Would I be wrong in thinking we have a left hand – right hand problem here? (To wit: Left hand not knowing what the right hand is doing.
http://large.stanford.edu/courses/2016/ph241/kim2/
Also: https://atomicinsights.com/?s=vermont+yankee
Vermont Yankee was a baseload nuclear plant which depended upon maintaining high capacity factors year-in year-out to maintain its profitability.
In a power market severely warped by the presence of directly subsidized wind and solar, gas-fired generation has a distinct advantage over nuclear baseload in that it can quickly ramp up and down in response to wind & solar’s intermittent output, doing so at less total lifecycle cost than nuclear.
We buy nuclear if (1) we are emphasizing energy reliability and security over raw energy cost, and (2) we are willing to pay what we believe to be a reasonble premium over gas-fired generation for having that additional energy reliability and security.
We should note that the new Micron chip manufacturing facility in New York state is expected to consume more electricity than the states of Vermont and New Hampshire combined. Forgive me if I think that the Micron facility will never reach its projected maximum output, assuming the plant ever gets constructed at all.
Would have appreciated an addressing of the economic basis upon which VY was decided to be uneconomical given the scenario a few years back (isn’t hindsight great! We could use that plant now) compared to where we are now and how VY could have plugged a hole … interesting you bring up the Micron chip plant; Again the pols right hand does not know what the economy’s left hand is doing (or going to do). Pols are the ones who voted to decom VY.
More details at the atomicinsights website above on the economics point in several posts.
And not far from it in western Wokeachusetts is a pumped storage project. I believe (could be wrong) it would store excess energy from Vermont Yankee by pumping up water from the CT River. It’s still working but there isn’t as much available energy for it- and the local greens are fighting hard to kill it claiming it’s damaging the fish in the river.
This law will not pass constitutional muster when challenged, as it assuredly will be as soon as Vermont tries to enforce it. The challenge will be filed in Federal court.
Air pollution is regulated exclusively by the Federal government unless a specific limited exemption is granted to states by the EPA. That is how California gets by with its stricter air pollution requirements. And one might say, the current EPA will certainly grant that exemption. But if EPA does that then it opens the door for Federal litigation on the grounds that Congress never granted EPA the authority to regulate carbon emissions as a pollutant under the 1990 Clear Act Amendments (CAA).
SCOTUS as it is currently composed will certainly strike down any attempt by EPA to regulate carbon “pollution” when the appropriate test case comes before them. Just as SCOTUS recently struck down other attempts to overreach their authority by EPA, most recently on the decision over EPA regulation of unconnected wetlands.
Vermont is a small state (population 647,000) with a cold climate and very little industry besides ski resorts, maple syrup, and teddy bears.
So this tiny state wants to tax companies that have the audacity to want to provide energy to heat their homes and run their ski lifts. As Greta would say, “How dare they?”
Following this to its logical conclusion, corporations that provide energy will stop doing business in Vermont and move to greener pastures, leaving native Vermonters to freeze all winter and invent wind-powered ski lifts.
This would probably turn Vermont into a ghost state, since the skiing is just as good in nearby New Hampshire or Lake Placid NY (site of a Winter Olympics), where there would still be electric ski lifts and heated ski lodges.
Will Vermonters still be “feeling the Bern” where nothing burns?
The base of a windmill is A LOT of concrete = A LOT of CO2. Most buildings will also have used concrete in its construction. Etc etc ……
As do the towers that support the ski lifts.
What an odd state – lots of mindless Gaia-ism for the Birkenstock crowd, co-existing with minimal regulation of firearms for the knuckle-dragging back country types.
At least in Vermont people who own firearms (just about every one) know how to use them.
It’s the weekenders and second home owners who don’t know firearm safety.
Vermont, New Hampshire and Maine have the lowest crime rates in the US.
They are also 3 of the 29 Constitutional Carry states.
Yes, gun rights are entirely consistent with low crime rates. What I find interesting about VT is that there seems to be a political understanding that every tenet of the Left is embraced with the exception of ‘gun grabbing’. What’s Bernie’s record on Federal firearms legislation?
What’s happened in VT is the larger cities have turned extremely liberal, vote in extremely liberal politicians who promote extremely liberal ideas and free everything for everybody. They literally control the state with a one sided political discourse and have ended up with a dangerous unfunded budget. Sound familiar comrade?
VT is essentially bankrupt having lost large amounts of tax base to more conservative states. The only thing keeping it going is federal largess and that seems like it’s going to be curtailed sooner rather than later.
Is there a demonstrated need to address problems related to firearms in Vermont? Federal firearms legislation is mostly of the type that is unconstitutional — prior restraint — with respect to the First Amendment. That is, law abiding citizens are restrained for what they might do rather than punished for what they have done. Plotting firearm homicide rates for the country over time shows little correlation with legislation, but significant correlation with the percentage of youthful males, modulated by the introduction of new forms of illicit drugs. Yet, the liberals think that the solution is to impose restrictions on the people least likely to contribute to the problems, and the problem people routinely ignore the legislation.
Vermont wasn’t always that way. It has been changed by the immigrants who brought their big-city culture with them. It seems that you are assuming the those you characterize as ‘knuckle draggers’ are irresponsible and can be ‘straightened up’ by prior restraint style gun control laws. I don’t think that you have thought through your position. It also appears that you have little acquaintance with the original inhabitants, who wrote their constitution, and their descendants. In short, you know not of what you speak.
Clyde,
Clearly my attempt to inject some humor into VT politics by incorporating (Mark) Steyn-isms like ‘knuckle draggers’ and ‘Birkenstock crowd’ into my comment missed the intended mark. (Yes, I know Steyn resides in NH, not VT). I was only trying to make the point that it was remarkable that the same state that reliably sends Bernie Sanders (and formerly Pat Leahy, I might add) to DC for decades is the same state with the least amount of firearm regulation. Maybe it was a necessary compromise for the Left back in the day, but if I were a VT gun owner, I wouldn’t count on that kind of restraint much longer given what VT is doing with energy.
VT is still mostly wooded and could have a huge timber industry but the enviros and greens fight hard to kill it.
Perhaps they should build a power-station run off wood-chips..
According to the greenies, that is carbon-neutral 🙂
Wrong.
greenies HATE wood-chips and woody biomass power plants
I’ve been fighting them over this issue for years.
actually, those green idiots claim that burning wood is “worse than coal”
At least the smoke from wood smells better than the sulfurous odor from coal. 🙂
Like many have posted before, it’s too bad petroleum companies can’t just boycott states that want to sue them for mythical damages. If they want to see real damages, have them stop using fossil fuels and all products derived from them. Start the boycott in January.
I presume those ski lifts use diesel motors on site? Or electricity from the grid? Either way, without ff, people can walk to the top of the mountain.
They can use tow ropes powered by environmentalists in human-sized hamster wheels.
Interesting question might be are there any petroleum or coal companies that engage in extraction that are doing business in Vermont. It may be the case that the fuels sold there come from third party marketing companies that never extracted.
There might be some young lignite deposits in the state, but I think that the metamorphism that created the Green Mountains pretty much destroyed any coal that might have been present prior to the orogeny.
You can comment all you want, but the leftist, communist, socialist S heads in the VT Legislature have a veto proof majority and a RINO governor to boot, and they say FU to you all
Why those Great Leap Forward always end in disaster. Farmers be aware next they will come for your cows.
And cultural revolutions…just sayin’.
OT a bit but related…if you want a real belly laugh, at leftist projection on steroids, go look at some of these cartoons, hilarious! This woman is unhinged.
The Real Conspiracy | Jen Sorensen
Just more virtue signaling harassment of “Big Oil”. Won’t go anywhere but will make the tree huggers feel like they are ‘doing something’ to save the world.
It is impossible because weather causes climate.The definition is 30 years of weather is the climate in a given area. If Vermont is redefining the meaning of “weather” and “climate” to mean the opposite of what it does now, they will be having a real fun time in court enforcing their law when the definition is shown to be backwards.
Let the boycott of Vermont maple syrup commence!
Might as well, it’s dam expensive!
The Grade B has the most flavor and the least cost. Most places don’t make it because they can get more for the fancy stuff.
I get mine from the neighbors, usually no charge…
Yep because to make it you have to burn something = CO2
Usually wood.
Vermont doesn’t deserve any fossil fuel in any form, no oil, no gas, no diesel, no synthetics, no plastics, no power generated with fossil fuel, no ff based cosmetics, no ff based medicines no nothing.
The law is truly nuts but a minor point. SCC is damages from today’s emissions over the next 300 years or so, not today. Most are from land lost to sea level rise which is why they have to go out centuries to find them. Of course this is just as nutty as the Vermont law
We need someone with Elon Musk kind of money to buy all the gas stations in Vermont just so he could shut them down.
All those deniers that got all that money from fossil fuel companies could pool their cash and do it. Oh, yeah, I forgot. there aren’t any.
The actual culpability lies with consumers, not with those who are meeting the public demand. However, that would imply that the public would have to pay out of their pockets rather than digging into the deep pockets of those providing a public service.