As the Rockefeller-led, nationally-coordinated climate litigation campaign continues to lose momentum, anti-energy activists are pivoting to plan B: push climate superfund legislation that targets the U.S. energy industry with gigantic financial penalties at a time when energy affordability is a top concern for residents across the country.

Yet, this new approach is already running into massive blowback from legal experts, Democratic lawmakers, and even the officials tasked with implementing superfund bills. Over the past year, proposed legislation stalled or was voted down in California, New Jersey, Virginia, and elsewhere.

Ironically, the only two states to enact climate superfund laws—New York and Vermont—already have some of the highest energy costs in the country. Both states were swiftly sued by a broad coalition of plaintiffs, including energy trade associations and the U.S. Department of Justice, arguing the laws are unconstitutional.

Other states considering similar legislation are now watching closely, aware that their own proposals would likely face stiff challenges in the courtroom, while also becoming increasingly aware that their proposals would drive up energy costs on their own constituents.

Vermont Officials: “They make it sound oh so simple!”

As other states wait in the wings to see whether Vermont and New York’s superfund laws will stand up in court, Vermont state officials remain perplexed by how this legislation would actually work in practice.

Open records show that following a New York Times article on the state’s superfund legislation, officials in the Agency of Natural Resources found the coverage unhelpful in that it implied implementing such a law would simple and straightforward.

Officials at the agency commented, “Oh Boy!,” Sigh,” and “They make it sound oh so simple!,” in an admission that both the passage of the legislation and how it would work in practice was a matter of serious contention.

Additional correspondence shows further hesitation with the Deputy Secretary of the agency writing:

“I talked to Julie [Moore; agency Secretary] and she still harbors the same concerns and caution – but we don’t want to get in the way of [Sen. Richard] Sears right now. It will have to go to the House.”

The bill eventually passed into law, but without a signature from Gov. Phil Scott – who publicly detailed his own reservations.

Open records also show the heavy involvement of outside activist groups, including the Conservation Law Foundation, where a leader with the group wrote to the agency about their involvement:

“We’re working with Vermont Public Interest Research Group, Vermont Natural Resource Council, and others to advance the legislation and I’d gladly serve as a liaison to share any feedback/critique/questions that you have once you’ve reviewed.”

Lee Waserman, the Director of the Rockefeller Family Fund, and central player in the orchestration of the entire climate litigation campaign openly bragged about his group’s influence over the process, writing in the New York Times:

“The Rockefeller Family Fund, which I direct, has spent roughly $200,000 since 2022 in support of environmental efforts in Vermont, including passage of the climate Superfund law.”

Under the law, the treasurer’s office must submit its to the Agency of Natural Resources by January 2027 – the same agency whose staff appear unconvinced of the law’s feasibility. Vermont ANR has issued a Request for Information to outside parties to assist with the methodology, and none other than Richard Heede – the activist who pioneered attribution science specifically for litigation against oil companies – has responded to the RFI.

Other States Shelve Superfund Bills

Other states have shelved the climate superfund idea on similar grounds. California, for example, failed to advance climate superfund legislation multiple years in a row, after intense pushback from Democratic political leaders and the business community that the legislation would spike energy costs.

A similar bill in Maryland stalled amidst opposition over feasibility and costs from Democrats in the state legislature, including one of the bill’s co-sponsors, and there were more recent failures in New Jersey and Virginia.

Even Pat Parenteau, the Vermont Law professor emeritus and a longtime supporter of climate lawsuits against energy companies, conceded that the idea may be one thing, but it’s “the execution and the implementation of a law like this that gets complicated.”

Bottom line: Reality is beginning to resonate with state lawmakers and academics across the U.S. about what climate superfund legislation is: a legally and practically uncertain attack from activist groups on the U.S. energy industry that would hike costs on consumers.