The billionaire-funded climate litigation campaign against American energy companies has accomplished little in the near decade since its start, with the cases mired in procedural issues and setbacks along the way. Recognizing this, it appears the leaders of the Rockefeller foundations – the central strategists and financial backers of the lawsuits – have decided to hedge their lawfare bets and pursue their ultimate goal of taking down the oil and natural gas industry via state legislative efforts.
In recent years, activists have lobbied state legislatures across the country to pass “climate change Superfund” bills, with legislative proposals currently in Maryland, Massachusetts, New York, and Vermont. These bills would extract billions in fines and payments from energy companies in order to compensate states and towns for the economic impacts of climate change.
To attribute shares of global emissions to individual energy companies, the legislation relies on the Richard Heede’s fringe and biased body of climate attribution science that has received funding from the Rockefeller nonprofits to support climate litigation, or for other means of holding companies “accountable.”
If it all sounds familiar, it should – the Superfund legislation has nearly identical aims to climate lawsuits against energy companies and is yet another brainchild of the Rockefeller Family Fund.
If at First You Don’t Succeed…Try, Try Again.
The recent state Superfund bills were preceded by a failed 2021 effort to pass similar federal legislation, which longtime RFF director Lee Wasserman “helped develop.” However, despite a Democrat-controlled Senate, the bill didn’t make the cut for inclusion in President Biden’s massive infrastructure, climate, and COVID-19 recovery legislative package.
Shifting gears, Wasserman and a familiar cast of activists, foundations and third-party groups laid out their plans to push similar Superfund legislation in “deep blue” states that offer a more friendly venue. A University of Michigan law professor who helped draft and research the bills described the strategy shift in an interview last year:
“The environmental groups that have been pressing for this type of fund decided that their best hope was to try to do something in individual states where there is pretty solid Democratic control.”
Just as New York was the first to file, and lose, a climate lawsuit against energy companies, in May 2022, the state senate became the first state legislature to introduce a climate Superfund bill. During the bill’s rollout, Wasserman spoke on a Zoom presentation alongside the two state legislators who cosponsored the state’s Superfund proposal, where he suggested that other states would soon follow New York’s lead:
“I am certain that because of Senator Kruger and Assemblyman Dinowitz’ leadership we’re going to see similar bills introduced in states across the country.” (Emphasis added)
Other states did follow New York’s lead, of course. The Rockefeller-led climate litigation campaign has made one thing clear: when Lee Wasserman telegraphs what’s coming next, he’s probably pulling the strings.
State legislators in Maryland, Massachusetts, and Vermont have since introduced their own climate Superfund bills. In Vermont, the latest state to consider the bill, the Rockefeller-funded Vermont Public Research Interest Group (VPIRG) has campaigned heavily for the legislation behind the scenes.
Emails obtained by Government Accountability and Oversight show that in April 2023, VPIRG worked on a draft op-ed advocating for Superfund legislation with Vermont Treasurer Mike Pieciak. The two also discussed “legal updates” explaining recent developments in climate lawsuits. Then, in June, VPIRG kicked off a complementary “Make Big Oil Pay” campaign at City Hall.
Opponents of the Vermont legislation have argued that the fee amounts to an unlawful tax. Proponents, including VPIRG and the Vermont chapter of the Conservation Law Foundation, instead characterize the fee as funds for remediation efforts.
But even Vermont Treasurer Pieciak, who has said he’s “excited” about pursuing Superfund legislation, admitted that the Superfund program “would basically be an assessment,” or a tax, on oil companies. In other words, the bill is a backdoor attempt of achieving what Vermont is already seeking to do through the courts.
Bills Are Plagued by Legal, Implementation Issues
So far, no state legislature has taken the Rockefellers’ bait. Maybe it’s because the proposals fundamentally don’t make sense. Seth Jaffe, a lead partner in Foley Hogg LLP’s environmental law practice, wrote in JD Supra that he was “taken aback” by the illogical climate proposals:
“…let me assure you that I have read several versions of these acts several times and I still can’t really make sense of them.” (emphasis added)
Taking perhaps a too-literal page out of the climate litigation playbook, Jaffe pointed out that in assigning energy companies fees – or taxes – the Superfund proposals “use the language of damages, but the statute does not provide much of a trial and there is no attempt to link the payments to specific harms.”
Similar to climate lawsuits, consumers would ultimately get stuck with the bill. Ken Girardin, research director for a New York-based free market think tank, argued that consumers will bear the costs if states penalize major energy companies for lawfully suppling critical products like gasoline and heating:
“’You’re not going to get the money from some guy in overalls on an oil platform or some oil baron on a yacht… It’s money that’s [going to be] be collected from New York consumers and taxpayers.” (emphasis added)
This attempt to dance around calling a tax, a tax, may be the bills’ fatal flaw. The American Petroleum Institute commented that Vermont’s Superfund proposal is “likely unconstitutional and represents nothing more than a punitive new tax on American energy.”
Even Vermont Law School professor Pat Parenteau — who is part of an informal advisory group supporting the climate lawsuits — has questioned the practical application of such a bill:
“It’s a good idea. But like a lot of good ideas, it’s the execution and the implementation of a law like this that gets complicated.” (emphasis added)
Bottom Line: Climate change Superfund legislation is yet another Rockefeller-driven effort to shift responsibility onto fossil fuel producers, whom they fault for continuing to produce oil and natural gas. But it is still perfectly legal in this country to produce, market, sell, and use fossil fuels – in fact, the defendants’ activities are not only permitted by law, but actually encouraged by both state and federal laws.
These bills are a backdoor tax meant to imperil American energy companies and stuff the coffers of wealthy states while doing little to solve the real challenge of climate change and global warming – just like the failed climate litigation campaign.
