As I've noted many times, criticizing CERCLA is like shooting fish in a barrel. Apparently, however, my criticism is not universally shared. According to WBUR, some legislators around the country are so pleased with how well CERCLA works that they have proposed a "Climate Superfund Act," replicating CERCLA in order to fund climate resiliency projects as well as projects to repair damages caused by climate change. Nearly identical legislation has been introduced in a number of states, including Vermont and Massachusetts.
I am so taken aback by these proposals as to be almost – but not quite – speechless. And lest you think that advocates could take the concepts of Superfund while implementing them in a more logical way, let me assure you that I have read several versions of these acts several times and I still can't really make sense of them.
Fundamentally, the legislation is reasonably straightforward. Large producers of carbon-based fuels will be required to pay "damages" that reflect each producer's percentage share of carbon emissions from 2000 through 2018 or 2019 divided by a denominator intended to reflect that state's expected climate damages. For example, in Massachusetts, a "responsible party" would have to pay the percentage of $75 billion equal to that party's share of emissions during the relevant period.
Aside from my general concern about the idea of replicating Superfund to address climate damages, there is at least one major issue that needs to be clarified. Is the intent of the statute to replicate the tax on chemical producers that was part of Superfund before its expiration and that actually funded the "Superfund"? Or is it a liability mechanism intended to require carbon emitters to pay damages for the carbon that they have emitted. The statutes use the language of damages, but the statute does not provide much of a trial and there is no attempt to link the payments to specific harms.
In fact, the payments really do appear closer to the tax on chemicals used to fund the Superfund. Indeed, it's hard to avoid the conclusion that the payments are in fact a retroactive tax on the production of carbon-based fuels.
In fairness, imposition of some kind of tax would just be another way to put a price on carbon, even if it were somewhat awkwardly constructed. In any case, the problem with calling the payments a tax is that the legislation as introduced seems very intentionally to avoid use of the word "tax", and legislation imposing a retroactive tax of this sort might face all sorts of problems, both political and legal.
However, if it walks like and duck and talks like a duck, let's have the courage of our convictions and call it putting a price on carbon. I can say from experience, calling it the "Climate Superfund Act" would just be asking for trouble.
To view Foley Hoag's Law and the Environment Blog please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
