State weighs $75B superfund to make companies pay for climate change fallout

ALBANY — A proposal to create a $75 billion Superfund program to force companies that profited from use of fossil fuels to pay for the continued environmental fallout from climate change is pitting some powerful state legislators against the influential energy lobby.

“We have no more time to wait,” said Sen. Pete Harckham (D-South Salem), chairman of the Senate Environmental Conservation Committee. He said taxpayers alone can’t pay to combat the ravages of climate change, which include flooding, sea-level rise and storms. “It is time for decisive leadership.”

But while several key legislators, including Harckham, Senate Finance Committee chairwoman Liz Krueger (D-Manhattan) and Assemb. Jeffrey Dinowitz (D-Bronx), warn that time is quickly running out to avoid and reduce disasters, their effort faces substantial opposition from the energy industry.

The opposition includes the American Petroleum Institute, a trade group for oil companies, which argues in part that it would be unfair to penalize companies today for greenhouse gas byproducts from past business activity that was legal, and that the Superfund would hurt the nation’s economy. The issue also is being actively “monitored” by the Independent Power Producers of New York, another influential lobbying force in Albany for energy producers, according to state lobbying disclosure reports.

The proposal is among dozens that could be part of the state budget being negotiated between Gov. Kathy Hochul and legislative leaders now or could be debated as a separate measure after a budget is adopted.

Harckham and other supporters of the climate change Superfund proposal argue that dramatic action is needed and it must happen now. This month, the UN Intergovernmental Panel on Climate Change concluded that continued global warming will soon bring disasters that include severe coastal flooding, heat waves and storm surges at a greater ferocity and frequency to areas such as Long Island. The panel said erosion already has made Long Island shorter and narrower.

The climate change superfund would seek $3 billion a year from companies over the next 25 years.

“Right now, taxpayers and ratepayers are on the hook for the entire amount,” said Blair Horner, executive director of the New York Public Interest Research Group. “The bill makes those responsible pay their share.”

The proposal, called the Climate Change Adaptation Cost Recovery Program, is based on the successful Superfund program at the state and national levels. Since 1980, the Superfund programs have required corporations to pay for cleaning polluted sites on which they operated, such as Love Canal in Niagara Falls, which helped prompt the programs.

However, the existing Superfund programs assess costs to corporations for pollution cleanup after an investigation. The proposed climate bill wouldn’t. Instead, it would use decades of research to determine the share of carbon dioxide released into the atmosphere by specific companies over the past 70 years, supporters said.

“In the decade since Superstorm Sandy, New York State has seen tens of billions of dollars in damages from climate change driven disasters,” Krueger said. “Even if we do everything we should to mitigate the climate crisis, we will still face well over a hundred billion dollars more in damages and adaptations costs between now and 2050.”

A companion bill would direct funding from Superfund payments to communities to make buildings more energy efficient; update energy transmission facilities; expand public transit upstate; create rebates for small businesses and residents to reduce energy costs and emissions; and, on Long Island, provide job training to workers who lose their jobs in fossil-fuel dependent companies.

The American Petroleum Institute, however, said the effort is bad public policy and may be unconstitutional.

“There is reason to believe that a court would view this legislation as unconstitutional given the harsh and oppressive nature of the bill,” the association stated in a memorandum of opposition this month to legislators. “There is a persuasive argument that the bill’s extreme retroactivity [reaching back 23 years to 2000] and amount of potential liability [up to $75 billion] makes the law ‘harsh and oppressive’ considering that the targeted companies’ actions were lawful during the relevant period, and the emissions were actually produced by others farther down the supply chain.”

The industry also said a move from fossil fuels doesn’t have to threaten the nation’s economic engine.

“Singling out energy production for exorbitant and disproportionate penalties while ignoring the economy-sustaining use of that energy is misguided,” the trade group told legislators. The group also said the state’s estimates of blame can’t be accurately calculated.

“Liability should not attach simply because a company extracted or refined fossil fuels that were placed into commerce and combusted by a third party,” the API stated.

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.