BRATTLEBORO-Recently, two storms in the span of three weeks brought torrential rains and flash flooding to Vermont that made it seem as if the Northeast Kingdom were washing away down to Brattleboro.
Climate change is real, and it's happening in Vermont. Who is responsible, and who will pay to repair the damage?
"The Legislature has given us the authority to basically present a bill to those fossil fuel companies that are determined to have fueled the climate crisis," State Treasurer Michael Pieciak said.
The Climate Superfund Act, passed by the Legislature, was enacted into law on May 30 without the signature of Gov. Phil Scott.
The new law, Act 122, is designed to address urgent climate needs in the state.
"It's great that the bill passed this session, because we know what is happening to us," said Pieciak, whose office is playing a pivotal role in turning the new law into policy.
"We have been expecting warmer and wetter summers and they are unique," he said. "Topography makes us vulnerable to this kind of flooding, and particularly in areas that are more mountainous and that's much of the Northeast Kingdom, Central Vermont, Southern Vermont - I'd say a pretty broad swath of our state."
The act essentially tasks the Agency of Natural Resources to create a Climate Superfund Cost Recovery Program Fund at the Agency of Natural Resources (ANR).
"The purpose of the Program is to hold parties responsible for covered greenhouse gas emissions between the covered period of Jan. 1, 1995 and Dec. 31, 2024 for the entity's share of the State's costs due to climate change," says the act's summary.
"Responsible parties are defined as fossil fuel extractors or crude oil refiners that ANR attributes one billion metric tons or more of covered greenhouse gases during the covered period," the summary explains. "Responsible parties are strictly liable for cost recovery payments to the State."
The act requires the Treasurer's Office to calculate these costs, which would support climate adaption projects.
Moving quickly, Pieciak's office has already issued a request for information, "seeking expert opinions and advice to inform which fossil fuel companies must be held accountable under Act 122, including how to determine their relative share of climate-related loss and damage that Vermont has experienced over the past 30 years," according to a press release issued jointly by the Treasurer's Office and the ANR on July 24.
Officials also invite experts to weigh in on "established and well-documented approaches for calculating the overall cost to the state of greenhouse gas emissions, considering factors like public health, economic development, and impacts to natural resources."
Pieciak told The Commons he views the act as a victory since the governor did not veto it.
"The Legislature was ready to do a veto override vote, and I think everybody was happy that that did not come to pass," Pieciak said. "So we will take that as a win and a victory and get about doing our work."
Vermont is making big history with Act 122. Vermont is the first state in the country to enact a bill of this kind, going further than any other state in demanding big oil to cover the costs of climate change.
New York's Senate and Assembly have passed a similar bill and is awaiting a journey to the desk of Gov. Kathy Hochul. "The bill (S2129A) would lock in a 25-year fund of $3 billion per year paid for by oil and gas companies," writes blogger Tim Mohin of ESG & Climate News. "The fund would pay to remediate climate-related damages, and at least a third would be earmarked for disadvantaged communities."
"There are stakeholders in New York State who are lobbying the governor's office to try to convince them to be supportive of the legislation," Pieciak said.
Meanwhile, in Vermont, "I know there's an effort underway to try to make sure that we're not the only [state] that's pursuing this," he continued. "But being the first in the nation to actually put this concept into law, it's certainly important to make sure we do our best to get every sort of decision point correct."
In addition to New York, other states studying the issue are California, Maryland, and Massachusetts.
"But Vermont is the only one that has fully passed the law, I should say," Pieciak said. "The other states are still in the legislative process."
Lawsuits galore
Cities and towns around the nation affected by climate change which have tried lawsuits have not had much success.
"The legal process is expected to take years," The Guardian wrote in 2021.
After filing the first such lawsuits in 2017, some municipalities in California "have been tied down by disputes over jurisdiction, with the oil companies fighting with limited success to get them moved from state to federal courts where they think the law is more favorable," the news website explained.
The report predicted, though, that the legal process "is expected to add to already damning revelations of the energy giants' closely held secrets."
The most "closely held secret" is that scientists working for the oil companies knew about the dangers of climate change decades before it became common knowledge. Some point to a 1958 paper presented by a Shell executive to the industry's trade group, the American Petroleum Institute (API), as the first warning about increased carbon emissions from car exhaust.
In 1965, the Environmental Pollution Panel of President Lyndon B. Johnson's Science Advisory Committee published "Restoring the Quality of Our Environment," a report in which the committee members expressed concern at "measurable and perhaps marked changes in climate" by 2000."
"Accusations that the industry severely aggravated the environmental crisis with a decades-long campaign of lies and deceit to suppress warnings from their own scientists about the impact of fossil fuels on the climate and dupe the American public," said The Guardian. "The environmentalist Bill McKibben once characterized the fossil fuel industry's behavior as 'the most consequential lie in human history.'"
Like smoking
The attempt to make the fossil fuel industry accept blame and financial responsibility for putting profit over people's lives has as its underpinnings the decades-long effort to make America's tobacco companies pay reparations.
That industry understood the health dangers of smoking back in the 1940s, yet repressed and publicly denied the information for decades.
In May, Vermont finally received $24.9 million from tobacco manufacturers under the 1998 tobacco Master Settlement Agreement (MSA), announced Attorney General Charity Clark. Annually, Vermont receives monies from tobacco manufacturers, which resolved Vermont's lawsuit filed in the 1990s, which was among 52 filed by state and territory attorneys general and settled by more than 45 tobacco companies.
For Vermont, this illustrates how long the long game might be.
But one key difference: This is not a lawsuit. This is an invoice.
"The Legislature has given us the authority to basically send them a bill, and we are going to do the calculation as to how much damage climate changes cost of Vermont, both retrospectively and then prospectively as well," Pieciak said.
More lawsuits will probably follow
The fossil fuel industry is not expected to sit down and immediately cut Vermont a check.
"We're going to send that analysis to ANR, and ANR is going to determine, which companies are attributable to what percentage of that total cost," Pieciak said.
ANR will send an invoice for this damage. "And it's something that we would move to enforce in court, if they don't pay it," he continued. "And I'm sure it's something that they will attempt to invalidate in court at some point during the process."
In the end, it will probably come down to a legal battle.
"It won't be a battle over whether climate change is real or not," Pieciak said.
Rather, lawsuits would likely battle "over the science around making that determination as to how much damage there has been caused by it, and then how much attribution there is for each of the specific companies," he said.
The state is proceeding as though the new law "ultimately will need to be defended in a legal proceeding."
"You obviously want to work quickly and urgently," Pieciak said. "But you also need to make sure you're thorough and thoughtful and strategic."
The long game
The RFI is an opportunity for entities and individuals to share their knowledge and expertise and help inform the approach Vermont will use to determine losses and damages attributable to climate change, Pieciak said.
Responses, due Sept. 30, will be evaluated by ANR and the Treasurer's Office.
"This process will take time, but it won't be 10 years," Pieciak said, and, while the law calls for the process to take three years, "hopefully, our work is set to be concluded within two years,"
If that is the case, by mid-2026, ANR would take over and, by 2027, the agency will invoice the energy companies under the terms of the act.
The current RFI process solicits, in broad strokes, thoughts from experts, academics, consultants, and others in the climate science "space," Pieciak said. It is looking for suggestions and ideas, for frameworks and approaches.
"So it is basically the first step of initiating this process, and it's also the first step toward issuing an RFP request for proposal, where we would end up hiring one or more experts to to help us with this determination," Pieciak said.
Of course, this long process will not bring in the immediate money necessary to repair washed-out bridges, roadways, homes, and stores.
The Commons asked Pieciak what the best hopes and expectations of this process could be.
"The very minimum, as it relates to our work, is getting a sense of what climate change has cost Vermont and what it is expected to cost Vermont," Pieciak said.
"I think it will be a valuable thing to have quantified, particularly on the go-forward basis, because part of the costs going forward will be the cost of resiliency and adaptation," he said.
Having a price tag for understanding how much atmospheric damage will cost going forward will allow the state to start its long-term planning.
"What projects do we start to move forward on two years from now?" Pieciak asked. "Or five years from now, or 10 years from now, to try to make the state more resilient?"
Even as a baseline, he said, "if there's no money recovered from the fossil fuel industry, I think that's a helpful exercise."
"But more importantly, that work is going to cost money, and getting a recovery from the fossil fuel industries would help fund that work," Pieciak said. "And I think as the ultimate goal, that would be the pinnacle of success."
This News item by Joyce Marcel was written for The Commons.