Last week, Vermont became the first state to require fossil fuel companies to pay their share of the damage caused by the climate crisis. The small state has been hammered in recent years by flooding and other disasters, not to mention the economic cost of warmer winters to a longtime ski destination.
The fact that this sounds radical and is going to be at all legally complicated shows the outsize influence on our system of corporate interests and far-right ideologues. For while the law is expected to face legal challenges almost immediately, Vermont’s landmark policy actually follows a well-established blueprint that already exists.
The Vermont law resembles the “Superfund” model that the federal government enacted more than four decades ago to make polluters pay to clean up toxic chemical waste. The context for the original Superfund mirrors what we’re facing now with the climate crisis: In the 1970s, a series of disastrous events had devastating effects on the public health and psyche, on communities and ecosystems. Among these was the discovery of a landfill in Love Canal, a neighborhood near the iconic Niagara Falls, afflicted by decades of toxic waste dumping by the Hooker Chemical Company. The waste flooded residents’ basements during heavy rains, causing miscarriages, birth defects, asthma, seizures, and even deaths. The disaster inspired then-President Jimmy Carter to declare a state of emergency in 1978, setting in motion House and Senate hearings on toxic waste the following year and legislation that would lead to the creation of the Superfund. In April 1980, a toxic waste storage facility in Elizabeth, New Jersey, burst into flames, burning for 10 hours and sending smoke over a 15-mile radius. The Superfund, also called the Comprehensive Environmental Response, Compensation and Liability Act, or CERLCA, passed Congress later that year.
The Superfund worked by levying taxes on the most toxic industries, assessing the most toxic sites to prioritize, and forcing those directly responsible for specific toxic waste (often multiple parties) to pay for its cleanup. It was a success, especially in its early years under Reagan and Bush, cleaning up Love Canal, as well as another high-profile site in Kentucky. Over the program’s lifetime, more than 450 toxic sites have been cleaned up, in some cases restored to green space, including baseball diamonds, soccer fields, wetlands, bird sanctuaries, and, in Pensacola, Florida, even a model airplane park. A 2011 study found that Superfund cleanups reduced birth defects by 20 to 25 percent (though many experts do rightly question whether anyone really should be living near former hazardous waste sites, even if they’ve been declared “clean”).
By the 1990s, the politics of the environment had become more polarized between parties, and there were some cuts to the Superfund under the right-wing, Newt Gingrich–led Congress. Though polluters found responsible for specific pollution at specific sites still had to pay, Republicans eliminated a tax on oil and chemical companies that had been important to the fund’s health. These cuts meant that if no guilty parties could be found, the cleanup had to be paid for by a fund created by taxpayer money—which was not consistently replenished; federal funding for the Superfund was halved between 1999 and 2013.
Still, the idea of having polluters pay for their contamination was generally accepted. Even George W. Bush applauded the “polluter pays” idea on his administration’s official website, and boasted of his administration’s accomplishments in cleaning up Superfund sites: 129 finished cleanups from 2001 to 2003, recovering money from polluters ($4.3 million in 2003 alone), and securing more federal funds to clean up hazardous waste when no guilty party could be found ($1.4 billion for 2005).
Sure, some conservatives have griped about the Superfund over the years. In 1995, around the same time that the program was being defunded by the Gingrich Republicans, the right-wing Heritage Foundation called for polluter-friendly “reform” (though certainly not for scrapping the Superfund altogether). In 2009, one corporate lawyer dubbed it “one of the last bastions of pure command and control legislation,” comparing the program to “some obscure former Russian republic which remains devoted to Stalinism.”
But there was only one serious legal challenge. That came from General Electric, backed by the U.S. Chamber of Commerce, in 2000, arguing that the Environmental Protection Agency’s method of determining who was responsible for the waste violated due process. (A few days after GE filed, the EPA ordered the company to spend hundreds of millions of dollars helping to clean up part of the Hudson River.) GE and the Chamber encountered one defeat after another, and eventually the Supreme Court refused to intervene, effectively ruling in the EPA’s favor and leaving the principle of polluter pays intact.
So the original Superfund has a pretty good track record. It also has a relatively uneventful legal history. The fact that Vermont’s law is expected to face such an uphill battle shows how captured our legal system is by business interests and conservative ideologues.
Of course, companies will exploit the ambiguity about where any specific greenhouse gas comes from. But the vast majority of carbon emissions come from fossil fuels. Besides, there’s a growing body of knowledge on this very issue, called “climate attribution science.” The Vermont legislation will use the Carbon Majors data, which traces an impressive 1.42 trillion metric tons of carbon dioxide emissions to 122 perpetrators (oil, gas, coal, and cement producers).
Vermont’s law may soon be joined by others in New York, Maryland, and Massachusetts. And amid these efforts, even the original Superfund program is bouncing back after decades of decline under both parties. Biden has allocated $3.5 billion from the 2021 infrastructure law to clean up toxic waste sites, the biggest investment in the program in decades.
All these developments suggest that many policymakers know the value of the venerable polluter pays principle and are undaunted by the red tape of the looming right-wing judicial hellscape. Holding environmental perps accountable and incentivizing better behavior is still popular, practical, and possible.
