Gillibrand, Whitehouse look to hold polluters accountable

WASHINGTON, D.C. | U.S. Senators Kirsten Gillibrand (D-NY) and Sheldon Whitehouse (D-RI) filed an amicus brief to hold big polluters accountable for the harms their emissions have caused New York families and to defend New York state law against legal attacks from major polluters seeking to evade responsibility for the damage they have caused. Big polluters and their enablers are challenging New York's Climate Superfund Act, which established a fund paid for by large polluting companies based on their greenhouse gas emissions from 2000 to 2024 to pay for projects that protect New Yorkers from rising sea levels and other climate change risks. In an effort to avoid accountability, opponents of New York's law argue that it is preempted by the Clean Air Act and federal foreign policy. The senators' brief argues that such a finding is unsupported by the law and would improperly strip power away from states. "When big polluters put New Yorkers at risk, they must be held accountable," said Sen. Gillibrand. "New York has both the right and the responsibility to protect our families from the effects of climate change. I am proud to lead this amicus brief and will keep fighting to ensure corporate polluters — not New Yorkers — pay for the damage they have caused." "The Tenth Amendment to the United States Constitution states that '[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' Preemption of State laws is thus 'a serious intrusion into state sovereignty,'" Senators Gillibrand and Whitehouse wrote in their court filing. "Plaintiffs ask this Court to adopt a view of preemption so broad that it would flip the constitutional balance of power between States and the federal government on its head. Under Plaintiffs' theory, rather than powers being reserved to States unless preempted by Congress, States lack authority to regulate in any arena that could be preempted by federal action – even where Congress has not enacted legislation or expressed a foreign policy doing so," the senators continued. The plaintiffs' arguments are especially egregious given the Environmental Protection Agency's recent proposal to abdicate any role in regulating greenhouse gas emissions under the Clean Air Act. Not only would a finding that New York's Climate Superfund Act is preempted fundamentally usurp states' rights, but it would also allow polluters who have directly harmed New York families to avoid accountability. "The Climate Act is a cost-recovery program to pay for harms caused to New Yorkers. It allocates financial liability based on responsible parties' historic shares of past greenhouse gas emissions," said Senators Gillibrand and Whitehouse. "[T]he Climate Act's liability scheme apportioning costs based on historic greenhouse gas emissions is directly consistent with the 'polluter pays' principle, which is one of the most fundamental concepts of global environmental law and which has been repeatedly embraced by the United States." As the senators concluded, "[n]either the Clean Air Act nor express federal foreign policy preempts the Climate Act. Plaintiffs' arguments to the contrary would require this Court to adopt an untenably broad view of federal preemption." The full brief is available HERE.

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Gillibrand, Whitehouse look to hold polluters accountable

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