New York Climate Lawfare - ORIGINAL CONTENT

The State of New York enacted the Climate Change Superfund Act in December, 2024. The Act asserts that climate change has caused damage in the state and seeks to recover some portion of the alleged cost of that damage from elements of the fossil fuel energy industry alleged to be responsible for some portion of that damage as a result of the CO2 caused by emissions resulting from the use of their fuels. The Act is similar to the Vermont Climate Superfund Act of May, 2024.

“With nearly every record rainfall, heatwave, and coastal storm, New Yorkers are increasingly burdened with billions of dollars in health, safety, and environmental consequences due to polluters that have historically harmed our environment,” Governor Hochul said in a statement.

An appropriate topic for any discussion of lawfare, whether lawsuits alleging violation of existing laws or legislation leading to new law, is the issue of standards of evidence.

Standards of evidence refer to the amount of evidence or certainty required to prove a fact or claim in legal cases. The three primary standards of proof are:

1. Proof beyond a reasonable doubt
2. Preponderance of the evidence
3. Clear and convincing evidence.

The Governor of the State of New York listed record rainfall, heatwaves and coastal storms as the weather extremes of concern. The preponderance of the evidence, as collected and analyzed by the IPCC in its Sixth Assessment Report (AR6, Chapter 12) indicates no linkage between global warming and climate change and the frequency and intensity of extreme weather events with the exception of heatwaves, which are affected by increasing average temperatures.

The frequency and intensity of coastal storms have not increased, though the financial damage from such storms has increased as the result of the increasing value of the infrastructure exposed to the storms. However, when the damage estimates are adjusted for changes in GDP, there is proof beyond a reasonable doubt that there is no climate change driven trend. There is also clear and convincing evidence that tropical cyclones are responsible for the preponderance (80%) of extreme weather-related damage in New York.

The New York Climate Change Superfund Act fines fossil energy industry companies for the purported damage caused in the state by the CO2 emissions resulting from the use of their fuels, even though the sale of those fuels in the state was legal and even though the State of New York and its counties and cities were consumers of those fuels. The State has apparently arbitrarily set the total amount of the fines to be collected, since any damage by extreme weather events attributable to fossil fuel CO2 emissions would only be some fraction of the total estimated damage and the portion of the damage attributable to fossil fuel use in New York would be some small fraction of that total. Establishing an estimate of the damage attributable to emissions in New York State would require attribution studies, which rely on unverified and unvalidated climate models.

The Climate Change Superfund Act is the subject of a lawsuit filed by 22 states based on constitutional grounds.