West Virginia leads 22 states suing over New York Climate Change Superfund Act

ALBANY, N.Y. (NEXSTAR) — West Virginia led the charge against New York’s Climate Change Superfund Act, suing to block the law that requires polluters to pay for environmental damage based on how many tons of fossil fuels they emitted during a specific period of time. John McCuskey, West Virginia's Attorney General, argued that New York overstepped by charging out-of-state companies for emissions beyond their control.

“No legal challenge can change the facts,” said Democratic Assemblymember Jeffrey Dinowitz, who sponsored the bill and is quoted throughout the lawsuit. “Fossil fuel companies knew for decades that their products were driving climate change, yet they misled the public and did everything possible to block climate action.”

You can read the lawsuit—targeting Attorney General Letitia James, Interim Department of Environmental Conservation Commissioner Sean Mahar, and Acting Tax Commissioner Amanda Hiller—at the bottom of this story. Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Carolina all joined West Virginia in the lawsuit. The West Virginia Coal Association, the Gas and Oil Association of West Virginia, America’s Coal Associations, and Alpha Metallurgical Resources are also listed as plaintiffs.

New York’s law charges companies that released over a billion metric tons of greenhouse gases between 2000 and 2018. According to the lawsuit, the law implements an annual penalty rate of $3 billion in an effort to collect $75 billion over 25 years. It calculates each company’s share using global emissions from coal, oil, and natural gas, McCuskey said, even if they didn't produce energy in the Empire State.

The West Virginia lawsuit theorizes that fossil fuels have powered American growth for decades. Coal built factories and steel mills, natural gas heated homes and ran industry, and oil powered transportation and chemical plants, it said. And New York continues to depend on natural gas or imported coal from other states, despite its push for renewable energy.

“While there are serious questions about whether New York has the legal right to place tariffs on out-of-state producers, there is also the commonsense question of whether New York should penalize traditional energy companies for supplying resources that everyday New Yorkers depend on,” said Justin Wilcox, executive director of Upstate United, a coalition of business and trade organizations from Upstate New York. “If we want to make progress in our climate goals while also truly prioritizing affordability, policymakers cannot continue to approve measures that pass costs down to consumers or spend hard-earned tax dollars on frivolous, predictable lawsuits.”

The law charges firms with strict liability for their share of pollution and forces them to pay through a “cost recovery demand” that does not actually consider fault, according to West Virginia’s attorney general. He also argued that New York’s unfair penalty disrupted commerce between states, violating the Commerce Clause of the Constitution.

“This isn't just about New York,” said Cassidy DiPaola, representing the climate advocacy group Make Polluters Pay. “It's about whether states have the fundamental right to protect their citizens from a crisis that industry documents prove fossil fuel companies not only foresaw, but actively worked to worsen.”

Take a look at the lawsuit below: