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Climate Superfund Laws Target Fossil Fuel Industry Accountability
In 2022, shortly after graduating from law school, Rachel Rothschild authored a memorandum outlining the legal basis for a novel strategy to address climate change. Her proposal centered on enabling states to compel oil and gas companies to bear financial responsibility for damages caused by intensified extreme weather events such as floods and wildfires, exacerbated by the utilization of their products.
Rothschild’s research proved to be groundbreaking, serving as the bedrock for the nation’s pioneering “climate superfund” laws. These legislative measures, enacted in New York and Vermont the previous year, aim to make polluters pay for climate-related damages and are under consideration in potentially six additional states in the near future. Implementation of these laws could result in billions of dollars in costs for oil companies.
Campaign to Discredit Climate Legal Experts
Rothschild’s impactful work has made her a target. She is among a group of legal professionals, academics, and jurists facing a discrediting campaign spearheaded by a conservative organization closely linked to the fossil fuel industry and former Trump administration officials.
Following the enactment of Vermont’s law in June of last year, the aforementioned group initiated legal action against the University of Michigan, where Rothschild is now a faculty member. The lawsuit was filed after the university declined to release Rothschild’s emails pertaining to “climate superfunds,” citing public records laws. Government Accountability and Oversight, the group behind the suit, has also sought to depose Rothschild.
University Defends Academic Freedom
The University of Michigan has filed a motion to dismiss the lawsuit, arguing that Rothschild’s communications are not subject to public records requests because they were conducted through her private email account. Despite this, the university has informed Rothschild that she must comply with the deposition request.
Experts suggest that the actions directed at Rothschild appear intended to deter her and others from pursuing similar research and legal strategies.
Kyle Logue, interim dean of the University of Michigan Law School, stated that “Legal actions and public records requests can be misused to intimidate or silence scholars. Such actions not only threaten the individuals targeted but also hinder the advancement of knowledge and informed public discourse.”
Fossil Fuel Industry Pushback Against Accountability Measures
The actions against Rothschild are viewed as part of a broader campaign by the fossil fuel industry to suppress emerging legal mechanisms for holding companies accountable for climate pollution. Against the backdrop of federal rollback of climate change initiatives, these state-level “polluter-pays” laws and associated lawsuits are considered a critical new front in the ongoing debate about global warming.
Executives from approximately two dozen oil and gas companies voiced their concerns regarding climate superfund laws during a recent meeting with President Trump at the White House. They are reportedly seeking the Justice Department’s support in their legal challenges against these state laws, according to sources familiar with the private meeting.
Funding and Scope of the Opposition Campaign
The campaign against climate superfund laws is reportedly being conducted by a group largely financed by a foundation established by Joseph Craft III, CEO of a major coal company and a known supporter and donor to President Trump.
Rothschild’s initial memorandum, now gaining traction in state legislatures, advocates for applying the model of the 1980 Superfund law—which mandates polluters to finance the cleanup of contaminated sites—to climate damages resulting from emissions from fossil fuels. Lawmakers in several states including California, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, and Connecticut are actively considering similar climate superfund legislation.
Furthermore, over 30 lawsuits initiated by states and municipalities aim to compel oil and gas companies to cover costs associated with adapting to climate change impacts. Many of these cases contend that companies were aware of the risks of climate change linked to their products for years but concealed this information. These legal approaches are drawing parallels to successful lawsuits against the tobacco and opioid industries.
Industry Arguments and Counter-arguments
The fossil fuel industry argues that climate change is a global issue and that individual state laws represent an unconstitutional overreach into national energy policy.
Daryl Joseffer, representing the litigation arm of the United States Chamber of Commerce, which has filed lawsuits against New York and Vermont’s climate superfund laws, asserted that these laws impose “massive retroactive penalties” for lawful activities conducted out of state and regulated by federal authorities.
Twenty-two states, led by Republican attorneys general, are also challenging the New York law in federal court.
Ryan Meyers of the American Petroleum Institute characterized these laws as part of “a coordinated campaign against an industry that is essential to daily life and serves as the engine of America’s economy.”
Key Figures in the Campaign Against Climate Action
Christopher Horner, a lawyer and conservative activist with ties to the Trump administration, is a central figure in the effort to thwart attempts to hold fossil fuel companies financially liable for climate damages.
Horner has a history of utilizing public records laws to access and disseminate emails of climate scientists with the aim of undermining their research.
Michael Gerrard, a climate law expert at Columbia University, described Horner as “the nation’s most prolific user of FOIA…to target anyone working in the public sector to combat climate change.”
In 2011, the American Association for the Advancement of Science criticized Horner’s “unreasonable, excessive Freedom of Information Act requests” and accused him of using them to “harass and intimidate scientists.”
During the Obama administration’s efforts to pass climate legislation, Horner’s network distributed obtained emails of climate scientists to Republican members of Congress.
Horner claimed in a 2017 interview that this effort contributed to the bill’s failure.
Currently, Horner and his allies are focusing on those behind the “polluter pays” legal strategies.
Funding and Activities of Government Accountability and Oversight
Horner did not respond to requests for comment.
From 2018 to 2021, Horner served on the board of Government Accountability and Oversight, the group suing Rothschild. In January, he identified himself in an article as representing the group in open records matters.
Public records indicate that the Joseph Craft III Foundation is a major donor to Government Accountability and Oversight, contributing substantial sums annually from 2020 to 2023. This funding constitutes a significant portion of the group’s annual revenue.
Joseph and Kelly Craft have also been significant political donors to Mr. Trump and the Republican Party.
Focus on Rothschild’s Communications
Government Accountability and Oversight’s interest in Rothschild centers on her communications with Lee Wasserman of the Rockefeller Family Fund, a philanthropy supporting climate litigation efforts against oil companies.
Wasserman initially conceived the idea of combining Superfund law principles with penalties for climate polluters.
He presented the concept to the Institute for Policy Integrity at New York University, where Rothschild was a fellow. Rothschild researched the legal viability of the concept, funded by a donation from the Rockefeller Family Fund. Her research ultimately informed climate superfund legislation in New York and Vermont.
States often rely on academic legal expertise in climate and environmental matters due to potential conflicts of interest within private law firms with fossil fuel industry clients.
After her research, Rothschild joined the University of Michigan faculty and continued her pro bono work on climate superfund legislation, advising lawmakers and testifying before committees.
Rothschild stated, “I am proud to contribute my expertise in pro bono work and assist states like Vermont and New York in drafting these laws.”
Justin Flagg, an aide to a New York State Senator, emphasized that Rothschild’s pro bono work was “critical” to the passage of New York’s law, as it addressed previously untested legal ground.
Broader Campaign Targets Climate Law Experts
Other environmental law professors at public universities have also been targeted. Ann Carlson at UCLA faced similar public records requests orchestrated by Horner during the Biden administration.
Carlson, who had consulted on climate damage lawsuits, was a Biden administration nominee for a key environmental post. Government Accountability and Oversight provided Carlson’s emails to Fox News, which published stories critical of her, including connections to climate lawsuits and Leonardo DiCaprio.
Senator Ted Cruz used these emails to oppose Carlson’s confirmation, ultimately leading to her withdrawal, although she served in an acting capacity.
Carlson described the experience as “ruthless, relentless and baseless,” and as a tactic designed to deter work on “important climate policies.”
Judicial Scrutiny and Potential Impacts
The campaign has extended to judges, including Hawaii Supreme Court Chief Justice Mark Recktenwald, who faced criticism after a ruling in favor of climate liability lawsuits against oil companies.
Conservative media outlets and a group with ties to Horner questioned Justice Recktenwald’s impartiality due to his participation in an Environmental Law Institute event, though they omitted the presence of oil executives on the institute’s board and the fact that neither party in the Honolulu case raised concerns.
Experts emphasize that the efforts to discredit legal scholars in climate cases reflect the potential significance of these new laws and lawsuits.
Patrick Parenteau, Vermont Law and Graduate School, stated that “These new state laws and this avalanche of lawsuits are threatening the survival of these fossil fuel companies.”