Eli Dotson, MJLST Staffer
In the decade since the landmark 2015 Paris Climate Agreement, the governments of the world have fallen far short of their greenhouse gas (GHG) emission reduction pledges.[1] Climate change is intensifying: rising emissions have breached key CO2e and temperature thresholds and are destabilizing the biosphere.[2] In the U.S., the lack of sufficient action at the federal level was recently exacerbated by the Trump Administration’s rescission of the Endangerment Finding, a key Environmental Protection Agency (EPA) rule that served as the foundation for GHG regulation under the Clean Air Act (CAA).[3] But there may be a silver lining: the federal government’s abdication of authority may have inadvertently handed states a significant advantage in ongoing legal battles over two innovative climate regulation strategies. Minnesota is perfectly positioned to exploit this advantage and lead the next wave of state climate accountability.
First, on the policy front, Vermont and New York led the nation in passing “Climate Superfund” laws in 2024.[4] Taking inspiration from the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”), these statutes establish strict liability for parties with a significant nexus to the state that extracted or refined fossil fuels during recent decades.[5] These responsible parties would be forced to pay cost-recovery damages based on their share of GHG emissions, with payments going to a program fund that would finance climate adaptation projects.[6] Both statutes remain mired in litigation challenging their constitutionality. A coalition of private plaintiffs including the U.S. Chamber of Commerce and the American Petroleum Institute mounted challenges in federal court in both Vermont and New York; President Trump also issued Executive Order 14260 instructing the Attorney General to take action against both statutes, which the Department of Justice did in May 2025.[7]
Second, on the litigation side, local governments in at least ten states have sued Big Oil companies for damages related to their GHG emissions, typically under common law tort claims like nuisance.[8] The Second Circuit denied New York City’s attempt to recover from four Big Oil companies in 2021,[9] while Hawaii’s Supreme Court allowed Honolulu’s suit against Big Oil to proceed in 2023, explicitly condemning the Second Circuit’s reasoning.[10] Although it denied certiorari in the Hawaii appeal, the U.S. Supreme Court could potentially resolve the split this term in County Commissioners of Boulder County v. Suncor Energy USA, Inc.; environmental advocates see the Supreme Court’s decision to grant cert as a bad omen.[11]
One key legal issue underlies both the Climate Superfund and climate tort litigation: the preemptory scope of the CAA vis-à-vis GHG emission regulation. Though not intended for GHG regulation when originally drafted, the CAA was shoehorned into that role via the Supreme Court’s 2007 decision in Massachusetts v. EPA and the EPA’s subsequent Endangerment Finding.[12] Numerous federal courts have found that the CAA preempts federal common law tort claims.[13] However, the parties opposing liability for fossil fuel companies in the litigation discussed above proffer a different, largely untested theory: they allege that, via field preemption and conflict preemption, state and local statutory and common law attempts to recover damages for GHG emissions are displaced by the CAA’s comprehensive air pollution regulation scheme.[14] This aligns with EPA’s recent contradictory statement that “the CAA also continues to preempt state common-law claims and statutes that seek to regulate out-of-state emissions”[15]—apparently arguing that preemption extends to litigation seeking remedies for harms caused by GHG emissions.[16]
This is where the Trump Administration’s effort to dismantle federal climate regulation could backfire. The EPA is asserting that it lacks statutory authority under the CAA to regulate GHG as “air pollutants,” which now must “threaten health or welfare through local or regional exposure” in order to fall into EPA’s regulatory bailiwick.[17] Since the EPA is forfeiting its statutory authority to regulate GHG, any argument for federal field preemption collapses because no “comprehensive regulatory scheme” can exist. While opponents may argue that the preemption derives from the CAA’s statutory text rather than EPA’s regulatory choices, that argument grows considerably weaker when the agency itself has disclaimed the authority Congress supposedly delegated. Simply put, the parties opposing GHG emissions regulation cannot have their cake and eat it, too. Either the federal government has authority to regulate GHG emissions under the CAA, or states must be allowed to do so. Rescinding the Endangerment Finding necessarily creates constitutional space for state and local governments to take broader action.
Minnesota legislators are contemplating the opportunity to occupy this vacant climate policy space with a Climate Superfund Law: on March 4, 2026, the Greenhouse Gas Pollution Superfund Act (GGPSA) was introduced into the Minnesota Senate.[18] The Supreme Court could tangentially cast doubt on the constitutionality of the GGPSA via Commissioners of Boulder County (which deals with common law tort claims, not statutory claims). But Minnesota could still seize the current opportunity and learn from the litigation in Vermont and New York. A more narrowly tailored Climate Superfund law that draws a more circumscribed zone of liability for GHG emissions would preclude claims of extraterritorial regulation and interstate commerce clause violation like those that have plagued the Vermont and New York laws.[19] For example, damages could be explicitly tied only to emissions from fossil fuels that were extracted or refined in the state of Minnesota (rather than global emissions) by slightly revising the definition of “Covered greenhouse gas emissions” in the bill. Adapting the statute in this manner could reduce industry opposition (and litigation expenses) and increase the ultimate likelihood of recovery.
The Big Oil companies that are the target of Climate Superfund laws and climate tort lawsuits supply the global economy with a critical input which has driven massive increases in material prosperity. Yet their product also indisputably threatens the stability of earth’s climatic system, and for decades they have waged systematic disinformation, lobbying, and mercenary science campaigns to block common-sense climate policies.[20] Big Oil companies have also extracted enormous wealth from the earth’s natural resources—the five oil majors earned a total of $102 billion in profits and paid their CEOs $104 million in 2024 alone.[21] Holding these corporations accountable for their deception and obstruction by requiring them to pay their fair share of externalities is a just solution that will shift the cost of climate adaptation from the public to those directly responsible.
The Trump Administration’s decision to rescind the Endangerment Finding was intended to shield the fossil fuel industry from federal regulation. In doing so, it may have exposed the industry to something worse: a patchwork of state liability regimes with no federal preemption to hide behind. By stripping away the federal preemption shield, the Trump Administration has potentially handed every state in the union a sword, and Minnesota is perfectly positioned to take the first swing.
Notes
[1] Joint Research Centre, G20 Climate Strategies Insufficient to Meet Paris Agreement Goals, Eur. Comm’n (Jan. 31, 2025), https://joint-research-centre.ec.europa.eu/jrc-news-and-updates/g20-climate-strategies-insufficient-meet-paris-agreement-goals-2025-01-31_en.
[2] Isabelle Boscaro-Clarke et al., Global Climate Highlights 2025, Copernicus Climate Change Serv. (Jan. 28, 2026), https://climate.copernicus.eu/sites/default/files/custom-uploads/GCH-2025/GCH2025-full-report.pdf.
[3] Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, 91 Fed. Reg. 7686 (Feb. 18, 2026) (to be codified at 40 C.F.R. pts. 85, 86, 600, 1036, 1037, 1039).
[4] Jack Raffetto & Rose Quam-Wickham, Vermont and New York Climate Acts are First in a Wave of Likely Climate Change Cost Recovery Laws, Sidley Austin LLP, (June 20, 2024), https://www.sidley.com/en/insights/newsupdates/2024/06/vermont-and-new-york-climate-acts-are-first-in-a-wave-of-likely-climate-change-cost-recovery-laws.
[5] Id.
[6] Id.
[7] Kristina McKean, The Pending Fate of Climate Superfund Statutes, Geo. Env. L. Rev. (Jan. 29, 2026), https://www.law.georgetown.edu/environmental-law-review/blog/the-pending-fate-of-climate-superfund-statutes/.
[8] Center for Climate Integrity, Big Oil Accountability Lawsuits (2026), https://climateintegrity.org/lawsuits; see also Miranda Green, The Supreme Court Case That Could End Local Climate Suits, Atmos (Mar. 4, 2026), https://atmos.earth/political-landscapes/the-supreme-court-case-that-could-end-local-climate-suits/.
[9] City of N.Y. v. Chevron Corp., 993 F.3d 81, 85 (2d Cir. 2021).
[10] City & Cnty. of Honolulu v. Sunoco LP, 153 Haw. 326, 349 (2023).
[11] Suncor Energy Inc., vs. County Commissioners of Boulder County, Docket No. 25-170 (U.S. Aug 12, 2025); see also Green, supra note 8.
[12] Jody Freeman, Beyond ‘Endangerment’: Finding a Way Forward for U.S. on Climate, Yale Env’t 360 (Mar. 3, 2026), https://e360.yale.edu/features/endangerment-finding.
[13] City & Cnty. Of Honolulu, 153 Haw. at 349.
[14] Complaint for Declaratory and Injunctive Relief at 14, United States of America et al v. State of Vermont et al, Docket No. 2:25-cv-00463 (D. Vt. May 01, 2025).
[15] See Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, supra note 3.
[16] Eric Christensen et al., EPA Strikes at the Roots of Federal GHG Regulations, Rescinds Endangerment Finding for Motor Vehicles, Beveridge & Diamond (Feb. 13, 2026), https://www.bdlaw.com/publications/epa-strikes-at-the-roots-of-federal-ghg-regulations-rescinds-endangerment-finding-for-motor-vehicles/.
[17] See Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, supra note 3.
[18] S.F. 4126, 94th Leg., Reg. Sess. (Minn. 2026).
[19] Complaint, supra note 14 at 17-22.
[20] Zanagee Artis, Unveiling Big Oil’s Campaign of Lies, NRDC News & Comment. (May 10, 2024), https://www.nrdc.org/bio/zanagee-artis/unveiling-big-oils-campaign-lies.
[21] Energy Profits, History-making Profits. World-ending Emissions. (June 2025), https://energy-profits.org/.