A new Vermont law charges oil companies for climate change damage – based on the state distinguishing between which specific weather events it thinks were caused by greenhouse gas and which weren’t.
The first such state measure in the U.S, S. 259 became law Thursday night after Republican Governor Phil Scott refused to veto it. The act will go into effect July 1, 2024.
Under the law, Vermont will decree specifically which hurricanes, for example, were due to climate change. Vermont will then assign the cost of the damage done by each weather event.
Thus, when oil companies sue the state, Vermont is going to have to prove they are at fault for specific weather events, a scientific impossibility.
What’s more, the law charges oil companies retroactively going back to 1995, based on the amount of carbon dioxide each released into the atmosphere and their purported share of blame for allegedly causing climate change damage to the state.
The final version of the bill also makes it easier for Vermont to use unreliable data to calculate its charges and support its claims.
The bill initially required Vermont to use the “best publicly available” fossil fuel volume data and “the best” available science and publicly available data – but, the final bill deleted “the best” in both cases, freeing the state to use any data or research that supports its agenda, no matter how shoddy or unreliable.
According to S. 259, the money the state receives from the charges can be used for a variety of things, some of which directly relate to repairing weather damage and preventative construction.
But, the law also specifies that the money can be spent for things like:
- Home buyouts,
- Preventative health care programs,
- Providing medical care to treat illness or injury caused by the effects of climate changes,
- Responding to toxic algae blooms
The undefined determination of what constitutes “medical care” is extremely problematic. For example, it opens the door for claims that climate change anxiety is a medical issue that can be included in assessing the cost of climate damage.
The law appropriates $600,000 from Vermont’s General Fund in Fiscal Year 2025 to implement the initiative and creates one three-year limited service position in the Agency of Natural Resources.
Vermont’s Agency of Natural Resources is required create a report by January 15, 2025 detailing the feasibility and progress of carrying out the plan.
In a letter to Vermont’s House Judiciary and Environment and Energy Committees on April 11 of this year, the American Petroleum Institute (API) cited several legal problems with the bill:
- Retroactive Law Making
- Law May Be Contrary to Excessive Fines and Takings Clauses of U.S. Constitution
- Arbitrary Penalties and Estimated Fines Create Due Process and Fairness Issues
- No Nexus Between Fine and Actual Responsibility
- Improper Use of Strict Liability Standard
- Unfair Penalties
- Preemption (usurps federal jurisdiction)
“API is extremely concerned that the bill: retroactively imposes costs and liability on prior activities that were legal, violates equal protection and due process rights by holding companies responsible for the actions of society at large; and is preempted by federal law,” the letter explains.
API also takes issue with the dubious accuracy and highly-subjective determinations employed by Vermont:
“The bill incorrectly suggests that past emissions attributable to companies can be determined with great accuracy. That is simply not true. At best the state can only estimate emissions; and these estimates are imprecise.”
….
“The bill imposes liability without regard to the extent of a particular business’s actual responsibility. Given the potential magnitude of the fines at play, API believes that the state must offer more than an asserted causal connection between greenhouse gas emissions attributable to a company and negative impacts or injuries to the environment or public health and welfare.”
Additionally, API notes that the law punishes only domestic energy companies, not foreign greenhouse gas producers:
“The bill as written places an unfair burden on domestic companies. The bill applies only to ‘responsible parties’ which excludes ‘any person who lacks sufficient connection with the state to satisfy the nexus requirements of the United States Constitution.’ Therefore, while domestic companies are penalized, foreign companies that have an insufficient connection with Vermont are not, despite their greenhouse gas emissions.”
One of the bill’s sponsors, Democrat State Sen. Anne Watson, a co-sponsor of the bill, says she hopes the law will coerce oil companies to “keep fossil fuels in the ground.”
While the law applies exclusively to Vermont, other states, such as Maryland, Massachusetts and New York are now considering similar measures.
