A growing number of states are considering climate superfund legislation that would impose retroactive fees on energy producers to fund climate projects. This approach, however, raises major questions around the legality, fairness and effectiveness of these laws, according to legal and policy experts who unpacked the far-reaching implications of these bills during a recent virtual panel hosted by the Institute for Energy Research (IER) and C3 Solutions.
Moderated by IER President, Tom Pyle, the discussion included insights from Ian Banks (C3 Solutions), Jessica Weinkle (University of North Carolina, Wilmington), and Donald Kochan (George Mason University). The panelists explored how these bills represent not just a clear policy overreach, but a fundamental threat to legal norms, scientific integrity, and energy affordability.
Climate superfund bills – which are designed and pushed by the same activists behind the litigation campaign against oil and gas companies – have been introduced in over ten states and signed into law in two, Vermont and New York. These state superfund laws are now facing steep legal challenges from industry groups, other state attorney generals, and the Trump administration.
A Retroactive Punishment with a Misnomer Name
One of the sharpest concerns raised during the panel was the constitutional flaw at the core of these bills: retroactive liability. Climate superfund laws aim to penalize decades of past activity – activity that was lawful and, in many cases, encouraged by government policy. As GMU Professor Donald Kochan explained:
“If every time you lose in court and can’t actually prove that someone is responsible… you just go to the legislature and say, ‘Hey, why don’t you deem them responsible without any proof’—that’s a really dangerous change and shift in our Democratic and Republican values.”
This approach raises due process concerns and opens the door to politicized, retroactive punishment across a range of industries, not just energy.
Experts also pushed back on the “superfund” label, calling it a misleading analogy. The EPA’s original superfund program, also known as CERCLA, pooled funds for cleanup at specific contaminated sites. But, as Kochan pointed out, unlike hazardous waste, climate change is a global issue with no discrete damage sites or direct remediation:
“There’s all kinds of reasons why these are not Superfunds. One is that there’s nothing remediated here… These labels were done for convenience sake, to make it sound like it wasn’t such a deviation from norms to do this kind of thing.”
Instead of remediation, the real purpose seems to be punitive: to create a system of endless liability that ultimately puts fossil fuel companies out of business.
Consumer Costs and Chilling Investment
Even if courts eventually strike these laws down, their economic effects will be felt immediately. C3 Solutions’ Ian Banks noted that companies are already reconsidering development plans in states that have proposed climate superfund laws, and that hesitation impacts consumers:
“These companies are going to have to pay billions of dollars… It’s going to discourage them from continuing to take action in these states. And likely, these costs will get passed on to consumers.”
This dynamic is playing out in real-time in California. As EID Climate previously commented, California’s own climate superfund effort stalled earlier this year after lawmakers raised red flags about affordability and fairness. Still, California has seen a policy-driven exodus of energy companies and infrastructure, contributing to its high gas prices. This outcome suggests that even in deep-blue states, reality catches up to rhetoric when bills come due.
The Role of Attribution Science
One of the pillars supporting climate superfund legislation is a relatively new theory: source attribution science, which claims to link specific weather disasters to individual companies’ historical emissions. Kochan noted that this theory has yet to withstand courtroom scrutiny:
“We’ve not yet gotten to the trial stage in any of these cases… because plaintiffs haven’t yet had to prove traceability, causation, and harm. But when we do, the scientific evidence standards should keep this science out.”
Professor Weinkle, who holds a PhD in Environmental Studies and Public Policy, added that source attribution research is increasingly shaped by litigation and advocacy goals, instead of neutral science – a dynamic that undermines its credibility in policy contexts.
Bottom Line: Climate superfund laws are climate activists’ latest attempts to blame energy producers for GHG emissions. These laws, built on retroactive blame and a selective use of science, seek to advance activist interests while doing little to address climate change. However, if enacted, they will ultimately raise costs for consumers without delivering any real environmental benefits.
