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Coalitions of Republican-led states, industry associations led by the U.S. Chamber of Commerce, and, most recently, the U.S. Department of Justice are testing “climate superfund” laws that aim to recover billions from carbon majors for climate adaptation costs. Recent rulings in lawsuits challenging the New York and Vermont statutes have split cases across courts and reached opposite outcomes on intervention: In New York, cases are being split between the Northern and Southern Districts and intervention efforts by nonprofits have been blocked, while in Vermont, the district court has allowed environmental organizations to join the defense of the statutes in two cases.
Southern District of New York Splits the Cases
On September 8, Judge Mary Kay Vyskocil ordered transfer of the Chamber of Commerce’s suit—joined by the American Petroleum Institute, the National Mining Association, and the Business Council of New York State—to the Northern District. The court found the case “substantially similar” to West Virginia v. James, the coalition suit brought by 22 states and four industry groups, and concluded that efficiency and consistency favored transfer under both 28 U.S.C. § 1404(a) and the first-filed rule.
That ruling stands in sharp contrast to United States v. New York, where, just weeks earlier, Judge P. Kevin Castel (also of the Southern District) denied New York’s motion to transfer the federal government’s case north. He gave substantial deference to the Justice Department’s choice of forum, citing EPA’s regional headquarters in Manhattan and the practical advantages of litigating in New York City. Judge Castel further emphasized that, regardless of venue, the “ultimate outcome of this litigation, as well as the N.D.N.Y. Action [West Virginia v. James], the Chamber of Commerce Action and this action ultimately will be decided by the Second Circuit or the Supreme Court,” and noted that a collateral benefit of denying transfer is that appellate courts may gain from “different judicial approaches and viewpoints.”
Northern District Denies Intervention
Meanwhile, in West Virginia v. James, Magistrate Judge Daniel J. Stewart recommended denial of a motion by four nonprofit organizations—West Harlem Environmental Action, Black Farmers United-New York State, Citizens Campaign for the Environment and Catskill Mountainkeeper—to intervene as defendants. While acknowledging their interest in defending the law, Judge Stewart concluded that New York’s Attorney General and other state officials were already adequately representing those interests, and that adding new parties risked complicating and delaying the case.
The Northern District’s refusal to expand the defense team stands in sharp contrast to Vermont, where the district court has twice permitted nonprofit organizations to intervene in climate superfund challenges. In Chamber of Commerce v. Moore and United States v. Vermont, Judge Mary Kay Lanthier allowed the Northeast Organic Farming Association of Vermont and the Conservation Law Foundation to join as defendants, emphasizing that excluding the groups could prejudice Vermonters directly harmed by floods and droughts. With Vermont’s consent, found that these organizations were “better situated” to advocate for their members bearing the costs of climate impacts, and that their participation would not prejudice the proceedings.
What’s Next
With the Chamber case and the states’ case now moving forward in the Northern District, the DOJ case continuing in the Southern District, and parallel litigation active in Vermont, challenges to climate superfund statutes are playing out across three venues. These divergent rulings on transfer and intervention highlight the uncertainty of the path forward and foreshadow the potential for equally varied results on the merits.
Pillsbury’s interactive Climate Superfund Map tracks these cases and the related legislative proposals nationwide.
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