New York and New Jersey hope to generate 16 gigawatts of offshore wind energy by 2035. (Photo by Scott Eisen/Getty Images)

New Jersey will receive $125 million as part of a settlement over Ørsted’s withdrawal from two offshore wind farms last year, Gov. Phil Murphy announced Tuesday, an amount that is less than half of what Murphy once said the company was required to pay the state.

The settlement funds paid by the Danish wind giant over its pullout from Ocean Wind 1 and 2, two 1,100 megawatt wind farms off New Jersey’s Coast, will be used to fund wind development and other renewable energy programs, the governor’s office said. But at least one Democratic lawmaker said the money should be sent back to New Jersey ratepayers as a matter of policy.

“The [Board of Public Utilities] ought to be looking for New Jersey ratepayers first, and these moneys should be reserved to reduce ratepayers’ bills when these projects come on board, and it should be a BPU policy,” said Sen. Joe Cryan (D-Union)

Last July, Gov. Phil Murphy signed a bill that would have allowed Ørsted to retain federal tax credits that would otherwise go to offset consumers’ power bills by roughly $2.40 per ratepayer per year. In return for those subsidies, the wind firm was required to post a $100 million performance security and place $200 million for wind project investments into an escrow account.

Ørsted withdrew from the projects months after the bill was signed into law, citing inflation, rising interest rates, and supply chain disruptions. It later sought to argue it was not responsible for those payments because, it claimed, state regulators gave final approval to related compliance paperwork.

“Our joint settlement, as well as the announcement that the fifth offshore wind solicitation will have a new accelerated timeline, underscores New Jersey’s commitment to offshore wind and the industry’s bright future in the Garden State,” an Ørsted spokesperson said. “While we advance clean energy projects throughout the region, we look forward to continuing valuable partnerships with New Jersey stakeholders.”

Separately, Murphy announced the state would solicit bids for a fifth round of offshore wind projects more than a year ahead of expectations. Those bids are now set to go out in the second quarter of 2025 instead of the third quarter of 2026, when Murphy will be out of office.

“At this pivotal inflection point for the industry both in New Jersey and across the nation, it’s critical that we remain committed to delivering on the promise of thousands of family-sustaining, union jobs, and cleaner air for generations to come,” the governor said in a statement.

The state Board of Public Utilities opened bidding for the fourth round of offshore wind solicitation in late April and will accept applications to build between 1.2 and 4 gigawatts of offshore wind capacity until July 10.

“By accelerating New Jersey’s offshore wind development schedule, we underscore our commitment to realizing the industry’s full potential for the benefit of all New Jerseyans,” said Christine Guhl-Sadovy, the board’s president.

The board also paused talks with PJM Interconnection on grid upgrades that are needed to transmit electricity generated by offshore wind turbines into homes and businesses, citing a new federal order that requires grid operators to plan for transmission needs 20 years in the future, among numerous other things.

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WASHINGTON, DC - JULY 27: Construction workers rest in the shade during maintenance work in Lafayette Park on July 27, 2023 in Washington, DC. Washington DC is under an excessive heat watch notice as a heat wave blankets the East Coast. According to media reports the month of July has broken the record for the warmest month ever with climate change experts fearing the summers in the future will only get warmer. (Photo by Anna Moneymaker/Getty Images)

Months after federal officials declared 2023 the world’s warmest year on record by far, New Jersey lawmakers are moving forward with protections for workers forced to toil in excessive heat.

A bill that would require state labor officials to implement a heat stress standard that would trigger action from employers to protect their workers advanced unanimously in the Senate’s labor committee Monday but drew major ire from the business community. 

“There’s a lot of uncertainty, a lot of confusion, and I think this needs some serious feedback and work to it to see what the scope and unintended consequences of this bill,” said Mike Egenton of the New Jersey Chamber of Commerce.

Under the measure, introduced by Sen. Joe Cryan (D-Union), employers would be required to implement a plan to protect their workers from excessive heat. At a minimum, their plan must include providing cold water, offering rest breaks and access to shade or cool-down areas, limiting the time workers are exposed to heat, and having an emergency response in case an employee becomes ill or injured, among other things. Employers would also be required to postpone non-urgent tasks until a heat wave is over.

“No workers should have to choose between their job and going home safely. If irresponsible non-union employers are allowed to profit from mistreating the employees, it creates a race to the bottom where we all lose and when lives are at stake,” said Gerardo Cortez, a UPS driver and member of Teamsters Local 177.

At least 436 people died from heat exposure between 2011 and 2021, according to the U.S. Bureau of Labor Statistics. The federal Occupational Safety and Health Administration says heat is the leading cause of death among all weather-related phenomena in the United States, and notes that workers of color in essential jobs are disproportionately subject to hot working conditions. 

All employees would also be mandated to take training on how to recognize high-risk heat days and signs of when someone is suffering from heat-related illness under Cryan’s bill. Within 30 days of the bill’s enactment, employers would have to begin maintaining data on their prevention plan and all heat-related injuries and fatalities. The Department of Labor would oversee enforcement of the bill’s provisions and maintain a program to educate employers on heat stress standards. 

Critics of the measure say the law is impractical as written and would lead to disruptions in their daily job responsibilities.

“It’s another burden on top of the other plans we got to do, and again, taking time away from patient care to do this,” said John Indyk of the Health Care Association of New Jersey, which represents the long-term care industry. 

Regulations like this would continue to make New Jersey a hostile business climate, said Elissa Frank, vice president of government affairs for the New Jersey Business and Industry Association. Noting that OSHA is currently crafting heat-stress standards, she said New Jersey doesn’t need another labor mandate when federal regulations are impending. OSHA began the rule-making process nearly four years ago. 

Some complaints lie with how broad the legislation is. Eric Blomgren of the New Jersey Gasoline Association said often, gas stations are staffed with one or two employees. If people take mandatory paid rest breaks, the gas station might have to shut down during that time or hire another worker, increasing payroll costs, he said. He suggested amending the bill to carve out businesses with few employees. 

Eileen Kean of the National Federation of Independent Business also stressed the wide-ranging applicability, from people working in kitchens in the summer to car dealers in parking lots. She said the regulations aren’t needed because the job market is so tough right now that businesses want to retain their workers. 

“Why would employers try to not take care of their employees? I would argue in our current business climate, employers are taking better care of their employees than they ever did, because when you get your team, you get good people, you want to keep them and treat them well,” she said. 

But people with first-hand experience of working in the heat pleaded with lawmakers to enact these protections. They say without regulations, companies will put production and profit over workers’ safety. 

It can exceed 100 degrees in the back of a metal delivery truck, Cortez said. And if it takes more than a minute to find the package he’s delivering, he’s drenched in sweat and lightheaded, he said. His union fought for protections and accommodations in their contract, like fans in new trucks and access to ice machines, but he knows thousands of warehouse workers and other drivers can’t push back on their bosses’ demands. 

Washington Rodriguez works at a warehouse, and has watched his fellow workers pass out on the job because of the heat. The water fountain at his job is so far away that people must choose between drinking water and potentially losing their jobs over bad production numbers or stress their bodies out and keep up with demand, said Rodriguez, who testified on behalf of Make the Road New Jersey, a labor and immigration organization. 

“I’ve seen too many employers demonstrate year after year they are willing to sacrifice workers for profits. We must have a law that holds all employers to a common sense level of responsibility for protecting the workers in extreme heat,” he said. “Keeping workers safe is not too much to ask.” 

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Two loons swim with their chick on Clear Lake in the Boundary Waters Canoe Area Wilderness in 2021. (Max Nesterak | Minnesota Reformer)

The U.S. House approved four bills focused on natural resources and land management Tuesday, promoting a Republican message of dissatisfaction with the Biden administration’s approach to conservation.

The four bills would force the withdrawal of a recent Bureau of Land Management rule that would allow leases for conservation, remove mining restrictions near Minnesota’s Boundary Waters, delist the gray wolf from the Endangered Species Act and block federal bans on lead ammunition.

The bills passed with few members of each party crossing the aisle.

They are unlikely to become law — or even receive a vote in the Democrat-controlled U.S. Senate — but their passage is an election-year message that Republicans support extractive industries in rural communities and oppose what they describe as an overreaching environmental agenda.

“Whether it’s the new BLM rule that fundamentally threatens the western way of life, or the decision to lock up enormous deposits of increasingly scarce minerals, it’s clear Biden and his bureaucrats have no interest in properly stewarding our federal lands or listening to local stakeholders,” House Natural Resources Chairman Bruce Westerman, an Arkansas Republican, said in a statement following the votes.

Democrats blasted the bills, saying they were ideological rather than practical.

“The entire House schedule this week misses the mark,” California Democrat Jared Huffman said. “It elevates right-wing ideology over the actual needs of the American people.”

Huffman managed Democratic speakers during much of Tuesday’s floor debate in place of House Natural Resources ranking Democrat Raúl Grijalva of Arizona, who announced a cancer diagnosis last month.

Biden has signaled strong opposition to the bills.

BLM rule

The House voted 212-202 to pass Utah Republican John Curtis’ bill to withdraw the recent BLM rule. Democrats Henry Cuellar of Texas, Jared Golden of Maine and Marie Gluesenkamp Perez of Washington voted yes, along with all Republicans except for Brian Fitzpatrick of Pennsylvania.

The rule creates a new type of lease for conservation, putting it on the same level as extractive industries like mining, energy development and livestock grazing.

Republicans have vocally opposed it since it was first proposed last year, saying it upends the agency’s decades-long multiple-use framework.

BLM lands should be reserved for productive uses, several House Republicans said Tuesday.

“Conservation is not a use,” Westerman said on the House floor Tuesday. “It’s a value and an outcome that can be generated by the uses” that are already in place on BLM lands.

Democrats said the rule did not block any other use, but simply elevated conservation, which they said was an important consideration.

“The rule will protect clean water, clean air and wildlife habitat,” Colorado Democrat Joe Neguse said. “It’ll promote the restoration of degraded landscapes. It will ensure that decisions are based on the best available science and collaboration with tribal, local and rural communities.

“But here is what the bill does not do,” he added. “It does not disallow or preclude any one of the multiple uses that the chairman referenced during the opening of this particular debate.”

Boundary Waters

The House passed, 212-203, a bill to rescind an administration ban on mining operations near the Boundary Waters Canoe Area Wilderness in Northern Minnesota. Golden and Perez voted in favor along with all Republicans.

Pete Stauber, the representative from the area who introduced the measure, said it would promote the economy of the mineral-rich region.

Stauber, a Republican who chairs a mining subcommittee, criticized the Biden administration’s approach to extractive industries. Boosting domestic mining would give U.S. policymakers more control over environmental and labor protections than importing critical minerals from overseas.

“Biden’s mining policy of anywhere but America, any worker but American must be stopped,” Stauber said. “We can find these minerals domestically under the best labor and environmental standards in the world. We know this all too well in Northern Minnesota, where mining is our past, our present and our future.”

Democrats objected to the bill, saying it endangered the Boundary Waters separating Minnesota from Canada. The wilderness area is a beloved destination for many in the state.

“This piece of legislation would revoke key protections for a watershed that contains some of the purest, freshest water in the nation, in the world,” Minnesota Democrat Betty McCollum said.

Gray wolf 

The House voted 209-205 to pass a bill authored by Colorado Republican Lauren Boebert that would remove the gray wolf from the federal endangered species list.

Republicans Fitzpatrick, Matt Gaetz of Florida, Mike Garcia of California and Nancy Mace of South Carolina voted against the bill. Democrats Yadira Caraveo of Colorado, Cuellar, Golden and Perez voted in favor.

Under the bill, states would be empowered to manage wolf populations, Boebert said on the House floor.

During floor debate, Republicans said wolves have fully recovered and no longer needed federal protections. They also said the predators were a nuisance to livestock and the ranchers whose livelihoods depend on cattle and sheep.

“I stand here today celebrating the success story of the Endangered Species Act, seeing that the gray wolf has been fully recovered,” Boebert said. “I also stand today … in defense of our farmers and our ranchers.”

Democrats argued that while gray wolves’ numbers have increased, they are still in danger of extinction if federal protections were to disappear.

Virginia Democrat Don Beyer noted that states such as Montana, Wyoming and Idaho that have delisted wolves saw overhunting.

“We’re in the midst of a biodiversity crisis,” Beyer said. “We should be supporting current scientific efforts by fully funding the agencies that carry out ESA extinction preservation work.”

Beyer also took a veiled shot at South Dakota Gov. Kristi Noem, a Republican who described in a recently published memoir killing her 14-month-old hunting dog in a gravel pit.

Dogs kill twice as many cattle as wolves, Beyer said.

“Yet we don’t say that all good dogs should go to the gravel pit,” he said.

Lead bullets

The House also passed, 214-201, a bill sponsored by Virginia Republican Rob Wittman to block the Department of Agriculture and Department of Interior from regulating the use of lead ammunition or lead fishing equipment on federal lands or waters.

Republicans Fitzpatrick, Gatez and Vern Buchanan of Florida voted against it.

Democrats Cuellar, Donald Davis of North Carolina, Robert Garcia of California, Golden, Vicente Gonzalez of Texas, Mary Peltola of Alaska and Perez voted in favor.

Each side accused the other of indulging special interests on the issue.

Democrats said Republicans were more concerned about blocking regulations on guns than promoting hunting and fishing.

“When it comes to guns, and now ammo, any type of restriction is too much for Republican ideology,” Huffman said.

Westerman said the bill “probably is more aimed at” fending off “any kind of attack they can take on our Second Amendment rights,” but said that Democrats’ opposition was due to their loyalty to extreme environmentalists.

“Manage these lands for the public, not for your special interest, radical environmental groups,” he said. “I think Congress has to take the lead on that.”

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JERSEY CITY, NEW JERSEY - JUNE 8: The One World Trade Center and the New York skyline is seen in the background as a man jogs through the Liberty State Park while the smoke from Canada wildfires covers the Manhattan borough on June 8, 2023 in New Jersey. (Photo by Eduardo Munoz Alvarez/Getty Images)

New Jersey has some of the worst and best air in the nation.

A report on air pollution the American Lung Association released Wednesday found that the Newark-New York City metropolitan area, which includes 13 counties in New Jersey, tied with the Dallas-Fort Worth area for the 13th most ozone-polluted city in the nation. That compares to 12th in last year’s report. The same metro area ranked 64th worst for fine particle pollution, with Union County dinged as the area’s most polluted county, by long-term measurements.

The Camden metropolitan area, which includes Philadelphia, Reading, and seven New Jersey counties, was the 35th most polluted metro area nationally. Bergen and Mercer counties got failing grades for “high-ozone days.”

Yet eight New Jersey counties scored A grades for the fewest high-ozone days (Atlantic, Hunterdon, Morris, Passaic, and Warren) and high-particle pollution days (Cumberland, Gloucester, Hudson, Hunterdon, and Morris) from 2020 to 2022, according to the report.

“For New Jersey, we really found sort of mixed results,” said Mike Seilback, the association’s assistant vice president of nationwide policy. “But things are trending in the right direction. Air quality is improving because of the steps that are being taken on the local, state, and federal level, and that’s something that we should be really happy about.”

Western states fared worse, with California, Oregon, Nevada, Washington, and Alaska topping the report’s list of the most air-polluted places to live.

“More than 131 million people live in an area that received a failing grade for one of the pollutants that we measure,” Seilback said. “This is a stark reminder that despite the improvements that we’ve made in air quality, far too many Americans are being exposed to unhealthy air.”

The association issued its first annual “State of the Air” report in 2000, and while policymakers have adopted reforms since then to reduce pollution, climate change has undercut progress, researchers found.

“Climate change is making it even harder to be effective at reducing air pollution because we’re having those longer, hotter summers, and the ozone gets cooked up in the atmosphere on those really hot, steamy summer weeks,” Seilback said.

The extreme heat and drought driven by climate change also has sparked more wildfires, which spike particle pollution, he added.

Seilback applauded New Jersey’s shift away from fossil fuels, noting the Murphy administration’s goal for a 100% clean-energy economy by 2035.

“New Jersey is one of several states that has really strong goals and benchmarks that we need to hit,” he said. “That’s not going to happen on its own. It’s going to require continued pushing of markets so that we’re moving away from old, dirty combustion and moving towards cleaner, greener energy.”

The association offered several strategies to reduce air pollution, including forest management to prevent wildfires, full funding of the Environmental Protection Agency, and defending the Clean Air Act on the federal level.

States should phase out the use of coal, oil, gas, and other fossil fuels, prioritize clean energy production, reduce air pollution at ports, invest in zero-emission buses, electrify buildings, expand electric vehicle infrastructure, improve air quality monitoring, and invest in communities overburdened by pollution, the report recommends.

Jackie Greger of the Sierra Club’s New Jersey chapter said many residents live in areas that fail to meet federal air quality standards. Vehicle pollution is a major driver of elevated ozone levels, she added.

The state made progress last year in adopting a rule requiring all new cars sold here to be electric by 2035, but more stringent rules could cut greenhouse gases more, she said. Policymakers also should work to reduce reliance on natural gas appliances, which make homes and buildings big emitters of air pollutants, she added.

“Highly populated areas in New Jersey and transportation hot zones like the I-95 corridor are hot zones for high-level ozone concentrations,” Greger said. “We must steer away from the burning of fossil fuels with our cars and buildings, otherwise we will never achieve healthy air for us to breathe.”

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A researcher holds small pieces of microplastic pollution washed up on a beach. (Photo by Alistair Berg, via Getty Images)

Microplastics can be found virtually anywhere, from the bristles of a toothbrush to packaged food, and experts who study the harmful effects plastic has on people’s bodies want lawmakers to consider legislation to mitigate their spread. 

“There’s only so much we can do as individuals, so we need the state of New Jersey to act,” Bennington College professor Judith Enck told lawmakers Monday.

Professors from around the country testified about their concerns over harmful plastic chemicals accumulating in the environment at a joint hearing of the Senate and Assembly environment committees timed for Earth Day.

Phoebe Stapleton, professor at Rutgers University’s Ernest Mario School of Pharmacy, said humans are so exposed to these microscopic plastics through skin, inhalation, and ingestion that studies have found evidence of plastic in people’s organs, blood, breast milk, tissue, and placentas. 

Only about 10% of plastic waste in America is recycled, according to the National Academies of Sciences, Engineering and Medicine. Between 1950 and 2017, 9.2 billion tons of plastics have been produced.

Plastic takes centuries to break down, so it remains in the environment as microplastics, which are less than five millimeters, or nanoplastics, which are so small they cannot be detected with the naked eye. These tiny bits of plastic have been found across all continents, landscapes, and locations, Stapleton said.

Stapleton estimated that 590 million tons of plastic will be produced annually by 2050, up from the estimated 400 million tons produced in 2022. She noted scientists “do not yet understand how, if, or when they may be eliminated from our bodies.” She said federal and state support is “paramount to unravel the human health concerns” that will likely arise from plastic exposure. 

Shanna Swan, an environmental and reproductive epidemiologist at the Icahn School of Medicine in Mount Sinai, cited a link between the creation of plastic and dramatically declining fertility rates and sperm counts. She said she measured sperm counts in different environments and saw major differences in places with greater exposure to microplastics and pesticides. She wondered why lawmakers aren’t more alarmed about global fertility rates declining an average of 50% over 50 years. 

“If I told you IQ dropped 1% per year, you would be really concerned. I think we should be really concerned about this decline,” said Swan, who testified via video from California. 

Microplastics are also disrupting men’s testicle size and women’s hormones, she said. And this isn’t just evident in humans, but across all species, she added. She believes there’s a link between the increasing number of endangered species and microplastics disturbing the environment. 

“Who cares if the genitals are a little different? Turns out it does matter,” said Swan. 

Bottle bill and other recommendations

Almost everyone is familiar with the phrase “reduce, reuse, recycle,” but there’s little being done on the reduction and reusing side, and recycling alone isn’t going to fix the problem, said Enck, a former U.S. Environmental Protection Agency administrator. 

And while lawmakers didn’t discuss any specific legislation — the hearing was only for discussion from the invited panelists — Enck suggested several proposals for lawmakers to weigh.

One of her recommendations is to pass laws to reduce packaging by 50% in the next decade. She pointed to Amazon packaging with unnecessary bubble wrap, and said taxpayers foot the bill for all this waste to be trashed. In states like Maine and California and countries like Japan and Germany with packaging reduction laws, people receive less plastic packaging, she said. 

“Companies can innovate when legislative bodies tell them the rules of the road,” she said. 

She urged lawmakers not to believe lobbyists for plastic companies who say plastic can be easily recycled. She warned against chemical recycling — a process that breaks down used plastics into raw materials that can be reused as chemicals, producing air pollution — saying it’s “absolutely not the answer.”

Gary Sondermeyer, vice president of Bayshore Recycling Group, said plastic recycling is “highly effective” in New Jersey. About 37% of solid waste in New Jersey is recycled, according to the state Department of Environmental Protection. 

What can be recycled varies from county to county. Sondermeyer recommended creating a uniform recycling list of what’s accepted across the state, which has been done in Connecticut, Oregon, and Colorado. And he agreed that plastic waste needs to be reduced. He also serves on a plastic advisory council that will present a report to the Legislature with recommendations, like avoiding buying single-use plastics for schools and other government facilities and creating a waste reduction steering committee. 

He objected to claims that recycling serves no purpose, he said. Nearly every resident has access to curbside recycling collection, and plastics are highly valuable to recyclers, he said. If the material wasn’t being recycled, companies would be losing money instead of making money, he stressed. 

Sen. Bob Smith (D-Middlesex), the Senate committee’s chair, pressed Sondermeyer on the impact of a “bottle bill,” which would require beverage producers to pay consumers a deposit for containers they return to the company. At least 10 states have deposit-refund systems for beverage containers.

It would have “incredibly negative repercussions” and “dismantle the system we have in New Jersey,” said Sondermeyer. If such legislation passed, he questioned how his recycling group would stay in business, estimating 40% of revenue would be taken away. 

Enck argued bottle bills lead to litter reduction and higher recycling rates. In states with deposit-refund systems, the recycling rate for plastic bottles is 37%, compared to 17% in states without these programs, she said. 

“We’ve got to get the details right,” she said. “The plastics industry knows the walls are closing in, and so they’re promoting bills that don’t really get the job done.” 

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Traffic backs up on the George Washington Bridge. (Dana DiFilippo | New Jersey Monitor)

One of the loudest critics of New York City’s congestion pricing plan scoffed at a transportation official’s promise this week that New Jersey will get a bit of the billion dollars it’s expected to generate annually.

U.S. Rep. Josh Gottheimer (D-5) said the Metropolitan Transportation Authority is merely “throwing some crumbs to Jersey” when MTA CEO Janno Lieber said Wednesday that New Jersey will get “its share, exactly on the arithmetic” of the hiked tolls to offset the harms expected when drivers dodging the impacted zone clog North Jersey roads.

“What we saw from the MTA is nothing new. Throwing some crumbs to Jersey doesn’t fix the fact that they’re planning to whack hardworking families with a $15-a-day, $4,000-a-year Congestion Tax,” Gottheimer said.

Lieber’s comments come as the region awaits a ruling by the federal judge presiding over New Jersey’s lawsuit to stop the plan, which would boost tolls on Manhattan’s busiest roads by up to $15 for cars and $36 for trucks, with lower tolls during off-peak times. Critics want the court to vacate the final approval the U.S. Federal Highway Administration gave the plan last June and order a “full and proper” environmental impact review, as federal law requires.

A federal judge heard arguments in the case earlier this month and is expected to rule by mid-June, when the new tolls are set to start.

Gottheimer has long blasted the plan and did so again Thursday.

“The MTA ignored the tens of thousands of families who begged them not to pollute our children. It’s only right that the federal government ensures there is a full environmental review before they whack Jersey families with the cancer-causing Congestion Tax,” he said.

Lieber, who spoke at a business breakfast in Manhattan, declined to detail how much funding New Jersey can expect, saying only it would be determined “by the number of people who are in areas impacted by initial truck traffic.”

The agency will spend millions to mitigate pollution in New York neighborhoods where local traffic is expected to worsen because of motorists detouring from the congestion pricing zone, which starts at 60th Street and runs south.

A spokeswoman for Gov. Phil Murphy, another congestion toll critic, declined to comment.

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Flooding in Lincoln Park in Morris County on Sept. 2, 2021, the day after the remnants of Hurricane Ida led to widespread flooding in the region. (Photo by Michael M. Santiago/Getty Images)

A fast-emerging field of climate research is helping scientists pinpoint just how many dollars from a natural disaster can be tied to the historic emissions of individual oil companies — analysis that is the centerpiece of new state efforts to make fossil fuel companies pay billions for floods, wildfires and heat waves.

When a flood or wildfire hits, researchers in “attribution science” run computer models to help determine whether the disaster was caused or intensified by climate change.

As those models become more precise, other scientists are working to measure how specific companies, such as Exxon Mobil or Shell, have contributed to climate change through their historic greenhouse gas emissions.

“This is a growing field, and it’s a game changer for addressing climate change,” said Delta Merner, the lead scientist for the Science Hub for Climate Litigation at the Union of Concerned Scientists, a climate-focused research and advocacy nonprofit. “It has a role to play in litigation and in policy, because it gives us that precision.”

For the first time, some state lawmakers are trying to turn that advanced modeling into policy. Under their proposals, state agencies would use attribution science to tally up the damages caused by climate change and identify the companies responsible. Then, they would send each company a bill for its portion of the destruction, from heat waves to hurricanes.

“This science is evolving rapidly,” said Anthony Iarrapino, a Vermont-based attorney and lobbyist for the Conservation Law Foundation who has been a leading advocate for attribution-based policy. “This is something that couldn’t have been done 10 years ago. [Lawmakers] are benefiting from this shift in focus among some of the most talented scientists we have out there.”

Lawmakers in Vermont and four other blue states have proposed “climate Superfund” bills, which would create funds to pay for recovery from climate disasters and preparation for sea level rise and other adaptation measures.

Oil and coal companies would pay into those funds based on the percentage of emissions they’ve caused over a set period. The legislation’s name references the 1980 federal Superfund law that forces polluters to pay for the cleanup of toxic waste sites.

States’ climate proposals come after years of lawsuits by state attorneys general against many of those same companies. They claim the companies knew years ago that fossil fuel use was causing climate change, but misled the public about that danger. While the courtroom fights are far from resolved, some advocates think it’s time for lawmakers to get involved.

“There have been a lot of lawsuits trying to get these companies to pay for some damages, and the industry’s message has been, ‘This is a task for legislatures, not the courts,’” said Justin Flagg, director of environmental policy for New York state Sen. Liz Krueger, a Democrat. “We are taking up that invitation.”

Oil industry groups object to the methodologies used by attribution scientists. Industry leaders say lawmakers are acting out of frustration that the lawsuits have been slow to progress.

“The science isn’t proven,” said Mandi Risko, a spokesperson for FTI Consulting and a contributor to Energy In Depth, a research and public outreach project of the Independent Petroleum Association of America, a trade group. “[The state bills] are throwing spaghetti at a wall. What’s gonna stick?”

Oil companies also assert that climate Superfund bills, if enacted, would force the penalized companies to raise gas prices on consumers in those states.

A legislative push

The push for climate Superfund legislation began with a federal bill in 2021, backed by U.S. Senate Democrats, that failed to pass. Lawmakers in a handful of states introduced their own proposals in the following years. Now, Vermont could soon become the first to enact a law.

Vermont’s measure would task the state treasurer with calculating the costs of needed climate adaptation work, as well as the damage inflicted by previous disasters such as last summer’s devastating floods.

The program would collect money from companies that emitted more than 1 billion tons of carbon dioxide around the world from 1995 to the present day. Those companies with a certain threshold of business activity in Vermont would be charged according to their percentage of global emissions.

“We can with some degree of certainty say how much worse these storms are [due to climate change],” said Democratic state Sen. Anne Watson, the bill’s sponsor. “That really is the foundation for us to bring a dollar value into a piece of legislation like this.”

Environmental advocates say the bill is a pioneering attempt to use the latest science for accountability.

“This is one of the first instances of climate attribution science being at the center of legislation,” said Ben Edgerly Walsh, climate and energy program director with the Vermont Public Interest Research Group, an environmental nonprofit. “That reflects the maturity of this field.”

Walsh said the measure, if passed, is expected to bring in hundreds of millions of dollars. The bill was approved by the Senate earlier this month in a 26-3 vote, and a House version has been co-sponsored by a majority of that chamber’s members. Republican Gov. Phil Scott has not said whether he would sign it into law, but he has said he would prefer to see larger states go first.

Exxon Mobil deferred an interview request to the trade group American Petroleum Institute. The institute did not grant an interview with Stateline, but pointed to the comments it filed with Vermont lawmakers last month. The group said its members lawfully extracted fossil fuels to meet economic demand and should not be punished for that after the fact. The letter also questioned states’ authority to impose payments for emissions that were generated overseas.

Meanwhile, New York lawmakers are currently negotiating a budget that could include a climate Superfund policy. A measure that passed the Senate at the end of last year would seek to collect $75 billion over 25 years to pay for the damages of climate change.

“It’s not intended to be punitive, it’s intended to pay for our needs,” said Flagg, the New York Senate staffer. “It’s going to be a lot of money, and $75 billion is only a small portion of that.”

The proposal applied to companies with a presence in New York responsible for more than 1 billion tons of greenhouse gas emissions worldwide between 2000 and 2018.

In Massachusetts, Democratic state Rep. Steve Owens introduced a similar bill last year. While the measure failed to advance, Owens said lawmakers are becoming familiar with the concept.

“Is this fraud that we can litigate or something that we can legislate?” he asked. “That question was not settled in time for this session. We’re going to keep working to get people used to the idea.”

Lawmakers in California and Maryland also have introduced climate Superfund bills this session.

Challenges ahead

If legislatures in Vermont and elsewhere pass climate Superfund bills, the state officials who carry them out are expected to rely heavily on researcher Richard Heede’s “Carbon Majors” project, which has tallied the historic emissions of 108 fossil fuel producers using public data.

“We know enough to attribute temperature response, sea level rise, build a reasonable case and apportion responsibility among the major fossil fuel producers,” said Heede, whose project is part of the Climate Accountability Institute, a Colorado-based nonprofit research group that has received funding from the Rockefeller Brothers Fund. “But that hasn’t been tested in court.”

Heede said that more than 70% of carbon emissions from fossil fuels can be linked to just over 100 companies, but noted that many large emitters, such as Saudi Aramco, the national oil company of Saudi Arabia, are owned by international governments that are unlikely to face accountability from U.S. state governments.

Last year, a study looking at temperature and water vapor data found that much of the area burned by wildfires in the West over the past several decades was tied to emissions produced by the largest fossil fuel and cement companies. That research by the Union of Concerned Scientists’ Merner and others was published in Environmental Research Letters. Similar research, looking at storms and heat waves, can show how much of an event’s intensity and economic damage can be pinned on climate change.

Backers of the state bills say they expect strong legal challenges from oil companies if their proposals become law. Pat Parenteau, an emeritus professor of environmental law at Vermont Law School, has supported states’ climate lawsuits, but cautioned that climate Superfund bills will likely face similar legal delays if enacted.

“The companies are gonna litigate the hell out of it,” he said. “Throw something more at them, but don’t for a minute think there’s something magical about it.”

He urged Vermont to wait for bigger states, such as New York, to pass the first climate Superfund bills and face the ensuing legal onslaught.

Advocates acknowledged the bill will face legal challenges, but said that’s not a reason to pause their efforts.

“Vermont is already paying through the nose for the climate crisis,” Walsh said. “The sooner we pass a law like this, the sooner we could actually see these companies be held financially accountable.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org. Follow Stateline on Facebook and Twitter.

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The Environmental Protection Agency is establishing drinking water standards for six types of toxic substances known as PFAS. (Photo: Getty Images)

The EPA has established the first-ever federal regulations for six types of toxic PFAS in drinking water, including GenX, which has polluted the drinking water supplies for hundreds of thousands of North Carolinians in the Lower Cape Fear River Basin.

“This is the most significant action on PFAS the EPA has ever taken,” said Administrator Michael Regan, who served as North Carolina’s Secretary of the Environment from 2017 until early 2021. “The result is a comprehensive and life-changing rule, one that will improve the health and vitality of so many communities across our country.”

Regan is scheduled to make a formal announcement this morning in Fayetteville.

The new standards will reduce PFAS exposure for roughly 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses, Regan said.

Exposure to PFAS has been linked to multiple health problems, including thyroid and liver disorders, reproductive and fetal development problems, immune system deficiencies, high cholesterol, and kidney and testicular cancers.

“It’s monumental,” Emily Donovan, co-founder of the advocacy group Clean Cape Fear, told Newsline. “For our community, it’s validation. It recognizes we knew what we were talking about. When a lot of elected leaders were saying the drinking water met all federal and state standards, they were speaking out of liability, not public health. The science was clear. The science was right.”

The six chemicals targeted by the EPA are among 15,000 types of PFAS, short for perfluoro- and polyfluoroalkyl substances. They are also known as “forever chemicals” because they don’t break down in the environment, where they can linger for hundreds, if not thousands of years. Traditional water treatment systems cannot remove the compounds.

The maximum contaminant levels, also known as MCLs, are legally enforceable. The affected utilities have three years to complete initial monitoring, after which they must conduct regular testing to ensure they are in compliance.

Starting in 2029, the affected utilities must comply with the MCLs. Utilities also must include the results and any violations in their annual consumer confidence reports sent to customers.

In North Carolina, sampling conducted by scientists, the N.C. Department of Environmental Quality and the utilities themselves from 2019 through 2023 showed 33 public water systems reported at least one of the now-regulated contaminants at levels above the MCL.

Those numbers are only estimates. Since those rounds of testing, some water systems, such as Pittsboro and the Cape Fear Public Utility Authority, have installed expensive treatment technology at their plants. And other utilities have not yet sampled for the compounds under the latest federal Unregulated Contaminant Monitoring Rule; they have until 2026 to fully report their results.

La’Meshia Whittington sat on the state’s Environmental Justice and Equity Advisory Board and is a member of Black Firefighters Fighting PFAS Collective, which advocates for regulations on toxic firefighting foam. “The fight against PFAS is a story of communities’ commitment to perseverance in the face of insurmountable odds and consequences that span several decades,” Whittington said in a statement provided by the Biden administration.

“The establishment of national standards for PFAS in drinking water means justice for my own ancestors, for my family and the countless communities I serve who have had to bury loved ones due to an invisible enemy lurking in our drinking water.”

The Biden administration has allocated $1 billion from the Bipartisan Infrastructure Law to help utilities test for the compounds, to install additional drinking water treatment systems, and, if necessary, connect to alternate water supplies. Private well owners can also qualify for a portion of the funds.

But that amount will be “woefully inadequate in offsetting the burden,” Kenneth Waldroup, executive director of Cape Fear Public Utility Authority, wrote in his comments to the EPA about the rule.

CFPUA serves about 200,000 people. It sources 80% of its drinking water from the Cape Fear River, long polluted with GenX released by the Chemours facility, which is located 100 miles upstream.

“While such regulations are necessary, we note the most cost-effective, equitable approach to reducing Americans’ exposure to PFAS in their drinking water is keeping PFAS out of source water in the first place,” Waldroup wrote. “Those who manufacture PFAS or use it in their manufacturing should be the primary focus of EPA’s regulatory efforts, and they should be the ones to bear the burden of compliance with regulations regarding the PFAS they discharge into sources of drinking water.”

A senior Biden administration official said that when monetized, the total benefits – fewer cancers, lower incidence of heart attacks, reduced birth complications – exceed the billion-plus dollars available to utilities. “The benefits are well worth taking into account and ensuring the rule is put in place,” the official said.

In 2017, CFPUA learned from scientific researchers that GenX was present in the drinking water. Since then, the utility has spent $46 million to install a granular activated carbon system, which has nearly eliminated PFAS levels in drinking water. It costs an additional $5 million annually to operate the system — costs that are borne by ratepayers.

Waldroup wrote that the cost of CFPUA’s single treatment system is more than the total amount of money available to utilities nationwide, as part of Drinking Water State Revolving Funds. Loans from these funds help water systems comply with federal standards under the Safe Drinking Water Act.

Dana Sargent, executive director of Cape Fear River Watch, applauded the EPA’s new standards, but added that the agency must go further. “[The EPA] refuses to regulate the corporations directly by requiring them to stop the pollution at the source, but instead put the burden on utilities to either filter this dangerous filth, or do the government’s job to pressure companies to stop discharging it,” Sargent told Newsline. “Make no mistake, utilities signed up for this and are well aware that it is their job to ensure the drinking water they’re selling is safe. Some of our utilities have met that charge and others are waiting for the feds to force their hands.”

The Environmental Working Group, based in Washington, D.C., has been studying PFAS for 20 years. The group found in 2004 that the compounds were present in the umbilical cord blood of all 10 babies born in America whom they tested.

These findings, EWG President Ken Cook said, mirrored a “secret internal company document that revealed DuPont had found its Teflon chemical in the umbilical cord blood of one of its workers in 1981 – decades before we did our study.

“The company never told the government. It never told America,” Cook said. “And these chemicals have no business in our babies.”

EPA Administrator Regan said he is confident that the new rule can withstand scientific and legal scrutiny. “We have designed a very durable rule that is well within our statutory authority that begins to protect people from harmful pollutants that are showing up in their drinking water. It’s a good day for people in this country who have long borne the impact of pollution from these forever chemicals.”

NC Newsline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. NC Newsline maintains editorial independence. Contact Editor Rob Schofield for questions: info@ncnewsline.com. Follow NC Newsline on Facebook and Twitter.

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POMONA, CALIFORNIA - OCTOBER 19: GRID Alternatives employees Sal Miranda (R) and Tony Chang install no-cost solar panels on the rooftop of a low-income household on October 19, 2023 in Pomona, California. GRID Alternatives has installed no-cost solar for over 29,000 low-income households located in underserved communities which are most impacted by pollution, underemployment and climate change. They are the country’s biggest nonprofit clean energy technologies installer and operate in California, mid-Atlantic states and Colorado. (Photo by Mario Tama/Getty Images)

Just about every week, Shawn Grant, who works for Salt Lake City-based Rocky Mountain Power, gets an inquiry from another utility looking for information about the company’s Wattsmart battery program.

“We want to do something. … How did you guys do it?’” Grant, the company’s customer innovation manager, says he’s often asked. “We’re always fielding those questions.”

The program pays customers with solar who opt to install battery storage systems for the ability to use that stored electricity to help balance flows on the electric grid.

For customers, the benefits come in the form of lower electric bills and backup power in case of an outage. For Rocky Mountain Power, which has 1.2 million customers in Utah, Wyoming and Idaho, the program allows the company to harness the collective power stored in those distributed batteries to shave electric demand when it spikes rather than calling for more generation from a traditional power plant, among other uses.

“We’re using every battery every day to reduce demand on the grid,” Grant said.

The concept is known as a virtual power plant, and grid operators, utilities, state regulators and lawmakers across the country are increasingly exploring the possibilities. They are seen as a cost-effective way to aid an electric grid that in many parts of the country is increasingly embattled by power plant retirements as well as difficulties building new, cleaner generation and the transmission lines they need — all at a time when huge projected electric demand increases loom.

“We’re now in this load-growth era,” said Robin Dutta, acting executive director at the Chesapeake Solar and Storage Association, a solar and storage industry group focused on Maryland, Virginia and Washington, D.C. “When you’re mitigating peak demand growth at the source, that’s perhaps the most cost effective way to modernize the grid.”

‘Faster, better, cheaper’ 

Nearly 800,000 American homes installed a new solar or solar and energy storage system in 2023, according to the Solar Energy Industry Association. That growth set a record, with about 6.8 gigawatts installed, a 12% increase from 2022. Electric vehicles, another potential grid resource as a store of energy, also broke a sales record last year, despite consumer uptake being slower than some expected.

“These are devices that people are buying anyway because they’re faster, better, cheaper and virtual power plants allows everybody to leverage these devices while putting some money back in the pockets of people that bought the thing in the first place,”said Brian Turner, a director at Advanced Energy United, a clean energy trade group

The U.S. Department of Energy found in a report last year that large-scale deployment of virtual power plants “could help address demand increases and rising peaks at lower cost than conventional resources, reducing the energy costs for Americans — one in six of whom are already behind on electricity bills.”

They’re not a new concept, the DOE noted, adding that most existing virtual power plants are so-called demand response programs. In Virginia, for example, the commonwealth for years has run a program that enrolls hundreds of public facilities (airports, universities, K-12 schools, municipal buildings, water treatment plants and others) that agree to reduce or shift their electric demand to relieve strain on the grid. The DOE report says deploying 80 to 160 gigawatts of virtual power plants by 2030 could save about $10 billion in annual grid costs and would “direct grid spending back to electricity consumers.” At that scale, virtual power plants could meet between 10 and 20% of peak electric demand. The Rocky Mountain Institute, a research nonprofit focused on sustainability, called virtual power plants “a valuable and largely overlooked resource for advancing key grid objectives,” including reliability, affordability, decarbonization and electrification, among others.

However, many states are starting to take notice of the potential:

• Maryland’s legislature just passed a bill that, among other provisions, requires utilities to create a pilot program to compensate owners of distributed energy resources like solar and battery storage for services they provide to the grid. “Ratepayers and consumers who invest in clean energy systems should see financial benefits when they provide meaningful grid services,” said Del. David Fraser-Hidalgo, a Democrat from Montgomery County who carried the House version of the bill. “Our DRIVE Act does just that; pairing battery storage with renewable generation will help Maryland achieve its clean energy goals, reduce our dependence on fossil fuels and mitigate the negative impacts of climate change.”
• Michigan, afflicted by expensive electric prices and high outage rates, has pending legislation, part of a package of pro-solar bills, that would create a virtual power plant program.
• In North Carolina, the state’s Utilities Commission has approved a Duke Energy pilot, called the PowerPair program, that it had directed the company to propose that will give customers incentives to install solar and storage. One group of customers will turn over control of the batteries to the utility and the other will participate in a test of “time-of-use rates,” which aim to shift customers’ usage to periods of lower demand, like running a dishwasher overnight, Utility Dive reported.
• In the summer of 2022, the New England Independent System Operator, which manages the electric grid for Maine, Vermont, New Hampshire, Massachusetts, Rhode Island and Connecticut, became the first such organization to use a virtual power plant, Politico’s E&E News reported. Sunrun, one of the nation’s largest solar installers, said it linked an estimated 5,000 small solar and battery systems to share 1.8 gigawatt hours of energy. In the summer of 2022, during a heat wave that sent temperatures soaring across New England states, residential and other non-utility solar installations reduced demand on the system by about 4,000 megawatts.
• The Pennsylvania Public Utility Commission announced in February that it was seeking comment on proposed rules related to use of distributed energy resources and virtual power plants. “Distributed resources provide the possibility for those who were traditionally consumers to play an active role in ensuring electric reliability and resiliency for themselves and their neighbors, and often in a less expensive way than traditional large generation that requires delivery infrastructure,” the commission’s chair and vice chair said in a joint statement.
• Arizona Public Service, the largest electric utility in the state, counts 75,000 smart residential thermostats in its Cool Reward program, which provided nearly 110 megawatts of capacity during the summer of 2022.
• A Colorado utility regulator is pushing for Xcel Energy to get a 50 megawatt virtual power plant up and running by the end of 2024, Utility Dive reported. The company, the state’s largest utility, already has a program called Renewable Battery Connect that allows it to discharge participating customers’ batteries during peak periods in exchange for financial incentives.
• In November, Puget Sound Energy, Washington’s largest utility, and AutoGrid, a California software company that provides distributed energy management systems, announced that they were expanding their partnership to develop a virtual power plant. “PSE’s VPP will reduce costs and help maintain reliable energy supply to its more than 1 million residential and business customers. Additionally, the VPP solution allows participating customers to receive monetary incentives for sharing assets with the grid and/or curtailing usage, something that’s financially beneficial for the community as well as helping the utility efficiently manage increasing electricity demand,” the companies said in a news release.

Why it matters

Experts who study and run the nation’s electric grid are worried about the pace of the energy transition. Old coal and gas plant retirements are accelerating, driven by economics, state clean energy policies and utilities’ own decarbonization goals. At the same time, massive backlogs in the queues to connect new power resources — overwhelmingly wind, solar and battery projects — in the regional transmission organizations that run the grid in much of the country mean big delays in replacing that retiring power generation. And after roughly a decade of flat electric demand, load growth is projected by many experts to explode as a result of transportation, industrial and home heating electrification, as well as a surge in data center development, among other factors. Throw in the fact that the construction of new transmission lines, essential to get excess power to where it might be urgently needed, has also stagnated and a problematic picture emerges.

“Most utilities in the country are planning on pretty significant load growth,” said Turner from Advanced Energy United. ”They could plan to build a new peaker plant or they could plan to ‘build’ VPPs.”

That’s where utility incentives come into play.

Generally speaking, Turner said, utilities that operate transmission and distribution systems are more friendly to the idea. Companies that also own their own generation,  – and make a sizable chunk of their income from guaranteed profits on building new plants – , might not like the idea of a program that erodes the business case for a pricey new facility.

“That’s why we have utility commissions,” Turner said. “They exist to say to the utility that virtual power plants are a cheaper option for the ratepayer and therefore you should implement it.”

However, even companies that might have resisted the idea are facing such dire electric-demand growth scenarios that virtual power plants may be attractive ways to get more flexibility out of the grid more quickly than building new generation.

“This is a way to get the capacity online faster and oftentimes cheaper,” Turner said. “Meeting that load growth is a real challenge in a lot of places.”

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In this photo provided by the United States Forest Service, firefighters battle a wildfire, Monday, Aug. 23, 2021, near Greenwood Lake in the Superior National Forest of northeastern Minnesota. The fire has burned more than 14 square miles and promoted a new round of evacuations of homes and cabins on Monday. (United States Forest Service via AP)

After years of legal appeals and delays, some oil companies are set to stand trial in lawsuits brought by state and local governments over the damages caused by climate change.

Meanwhile, dozens more governments large and small have brought new claims against the fossil fuel industry as those initial cases, filed up to a half-dozen years ago, inch closer to the courtroom.

“It’s all building toward more cases in more places using more legal theories to hold these companies accountable,” said Richard Wiles, president of the Center for Climate Integrity, a nonprofit that offers legal and communication support to communities suing oil companies.

Wiles’ group has tracked 32 cases filed by state attorneys general, cities, counties and tribal nations against companies including Exxon Mobil, BP and Shell. The lawsuits cite extensive news reporting — including investigations by the Los Angeles Times and Inside Climate News — showing oil companies’ own research projected the dangers of climate change decades ago, even as the industry tried to undermine scientific consensus about the crisis.

Those practices, the claims argue, violate a variety of laws including consumer protection, public nuisance, failure to warn, fraud and racketeering. Some of the lawsuits seek to force oil companies to help pay for the damages caused by climate change. Others aim to impose penalties for the use of deceptive business practices. Some want to compel the companies to fund a corrective education campaign about the climate threats they once downplayed.

Given the massive price tag of climate disasters and governments’ adaptation costs, experts say the lawsuits could put the oil industry on the hook for many billions of dollars.

Oil companies have long sought to move such cases to federal court, where they believe national regulations such as the Clean Air Act could supersede local governments’ claims against them. But a string of circuit court and U.S. Supreme Court decisions have ruled that the cases alleging violations of state laws belong in state court, finally clearing the way for jury trials.

Legal experts on both sides say there is a long way to go — perhaps decades — before there is any sort of resolution. But environmental advocates say the first trials could lead to a “tidal wave” of new cases, similar to the nationwide push that forced tobacco companies to pay billions under a settlement reached in the 1990s.

Oil industry backers argue that governments themselves have promoted the use of fossil fuels, and that attempts to hold companies accountable for climate change will hurt consumers.

“We don’t have an economy without oil,” said Wayne Winegarden, a senior fellow at the Pacific Research Institute, a California-based think tank that advocates for free market principles and is supported in part by oil industry-affiliated groups.

“Consumers are aware of global climate change and continue to use oil,” he said. “[The lawsuits] are an underhanded way of the states throwing on carbon taxes without having to take responsibility for it.”

First trials

In the past year, the Supreme Court has issued three denials covering eight cases, rejecting oil companies’ attempts to move them to federal court. The decisions, which uphold lower court rulings, will finally allow cases to proceed in state court, after years of delays over the “venue” question.

Two of those lawsuits, filed by the state of Massachusetts and the city of Honolulu, have moved past oil companies’ motions for dismissal and reached the pretrial discovery phase, when both sides exchange information about evidence they could present in court.

Wiles said the Massachusetts case against Exxon Mobil could reach trial as soon as next year. When the case was filed in 2019, then-Attorney General Maura Healey, now the Democratic governor, said the monetary damages could reach “untold amounts.”

If the Massachusetts suit wins a ruling that fossil fuel companies can be held liable for climate damages, it would prompt a “flood” of cases, Wiles said, as other attorneys general seek money for their states.

The Massachusetts attorney general’s office declined an interview request. None of the industry organizations facing lawsuits — Exxon Mobil, BP, Chevron, Sunoco, Suncor, Shell, ConocoPhillips, Koch Industries and the American Petroleum Institute — would grant an interview.

While all eyes are on the Massachusetts case, which appears on track to be the first climate trial, others are close behind. Boulder County, Colorado, also received Supreme Court validation last year that its lawsuit, filed in 2018, belongs in state court. Oil companies have now filed a motion to dismiss. Boulder Mayor Aaron Brockett said the move is a delay tactic used by the industry in nearly every climate case. If the claim is not dismissed, the county expects its case to move into the discovery phase later this year.

“We already have documentation that the companies involved in the suit knew about the effects of climate change as much as 50 years ago,” Brockett said. “We expect discovery to uncover a great deal more of that evidence. They knew about the damage that their products were causing, so they deserve to pay their fair share.”

Boulder County, he said, is spending millions to prepare for a climate future that is projected to include wildfires, droughts, floods and intense storm events. The lawsuit seeks to force oil companies to pay for the past and future damages caused by climate change.

Attorneys for the oil companies have argued in court filings that Boulder is attempting to use state law to tackle global climate change.

“Plaintiffs’ claims are not limited to harms allegedly caused by fossil fuels extracted, marketed, sold, or used in Colorado,” they wrote. “Instead, Plaintiffs attempt to use this state’s tort law to control the worldwide activity of companies that play a crucial role in virtually every sector of the global economy.”

The most recent U.S. Supreme Court decision, issued in January, denied attempts to move the state of Minnesota’s case, which was filed in 2020, to federal court.

“The fact that this whole avenue of delay and distraction has been shut down is huge,” said Leigh Currie, director of strategic litigation with the Minnesota Center for Environmental Advocacy. Currie helped write and litigate the lawsuit in her previous role with the state attorney general’s office. “We can go forward and actually answer some of the questions that these lawsuits pose.”

Minnesota is experiencing extreme weather, droughts, floods and wildfire smoke as a result of climate change, Currie said. While the state’s lawsuit does not directly seek damages for those harms, it attempts to compel the oil companies to surrender the profits they made as a result of unlawful behavior.

In their petition before the Supreme Court, the oil companies facing the Minnesota lawsuit argued that without federal review, “climate-change cases will continue to proliferate in state courts, resulting in the application of the laws of fifty states to climate change-related disputes, in conflict with the national-security, economic, and energy policies of the United States.”

‘A war of attrition’

The cases illustrate the arduous legal path just to get before a jury.

“[Oil companies] have an open checkbook, and they’re making record profits,” said Pat Parenteau, an emeritus professor of environmental law at Vermont Law School, who also serves in an informal advisory group that supports some of the governments’ cases. “The real test for the plaintiffs is whether they can compete and fight tooth and nail for years. It’s a war of attrition. That’s what Exxon’s counting on.”

The steep cost of taking on the oil industry has kept some states from joining the fray. But climate advocates say they’re seeing increasing momentum after the Supreme Court wins. Chicago filed a lawsuit this year. Last September, California became the largest government to file a lawsuit, seeking to force oil companies to pay into a fund that would help pay for climate adaptation efforts. Democratic Gov. Gavin Newsom’s office told Politico that the earlier victories gave California confidence that its case would be heard in state court.

“Having California in the mix could meaningfully alter the course of climate litigation,” said Hannah Wiseman, a professor of law at Penn State University’s College of Earth and Mineral Sciences. “They have the resources for this type of litigation that other states have been working to amass.”

Neither Newsom’s office nor Democratic Attorney General Rob Bonta’s office granted interview requests.

New York City, which filed its own lawsuit in 2021, is among the cases to cite laws that penalize deceptive advertising. New York argues “greenwashing” ads from oil companies portray them as climate leaders even as they continue to increase fossil fuel production.

“Part of the relief we are seeking is to stop the defendants from making false and misleading statements to New York City consumers,” said Hilary Meltzer, chief of the city’s environmental law division. The suit also seeks financial penalties.

Meanwhile, a pair of tribal nations in Washington state filed lawsuits late last year, citing the costs of moving to higher ground as rising sea levels threaten their communities. Environmental advocates say the entry of tribes — many of which are facing the worst effects of climate change — is a welcome development in the legal fight.

The Washington cases, brought by the Makah and Shoalwater Bay tribes, are among those seeking damages for specific harms. Another, filed by Multnomah County, Oregon, cites the deadly 2021 “heat dome” event that brought record temperatures to the region. And a pair of cases brought by Puerto Rico municipalities seek damages for the 2017 hurricane season.

So far, the climate cases have been brought by governments with Democratic leaders, as Republican officials remain largely hostile to climate action and more friendly to fossil fuel interests. Advocates say that political dynamic means such lawsuits will likely be limited to blue states for the near future. But they noted that red states are also in the path of climate disasters.

“Money talks,” said Wiles, with the climate group. “If New Jersey has a multibillion-dollar decision against Big Oil, why wouldn’t North Carolina say, ‘Damn!’?”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org. Follow Stateline on Facebook and Twitter.

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