Back to the Future for Climate Liability

The Polluter Pays Principle has been a central tenet of environmental policy for decades. It provided an economic justification for compelling cleanups through the Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)). However, outside of that context, it has not been explicitly cited as the chief justification for much environmental law in the United States—until now. The principle has recently been invoked in state climate lawmaking. Last year, Vermont and New York became the first states to enact laws that impose liability on fossil fuel producers for climate change harms, invoking the Polluter Pays Principle and Superfund as they did so. As other states watch with bated breath, the implementation of these new laws, particularly regarding their assessment and apportionment of damages, warrants attention; as does the more recent industry efforts to attack these laws in court. Through the magic of our imagination, and some overly strained metaphors, let us travel through time to the past, present, and future of climate liability.