Two bills proposing to create a
state-level climate cost recovery program are currently being considered by the
Environment and Natural Resources Committee of the Maine Legislature. The
first, introduced in late April 2025, is the proposed Maine Climate
Superfund Act (LD 1808). The second, LD 1870, entitled An Act to
Establish a Climate Superfund Cost Recovery Program to Impose Penalties on
Climate Polluters, was printed on May 5, 2025. Both bills aim to recover
the costs associated with climate adaptation by holding major fossil fuel production
companies financially responsible. Modeled closely on the strict liability
framework found in the Federal Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA)—the Superfund law—the bills do not require proof of negligence or
misconduct. Instead, responsibility is assigned based purely on a company’s
historical contribution to greenhouse gas emissions.
Supporters argue that this
approach is both pragmatic and fair. As Maine faces growing expenses from
rising sea levels, more intense storms, forest degradation, and public health
impacts alleged to be linked to climate change, the bills aim to ensure that
those alleged to have contributed significantly to greenhouse gas emissions
help fund the necessary adaptation measures. Critics, however, have raised
concerns about the constitutionality of applying strict financial liability
retroactively, and especially to a problem as globally diffuse as climate
change.
Who Would Be
Responsible, For What, And For What Period?
Under both LD 1808 and LD 1870,
a "responsible party" is defined as any entity—or successor to such
an entity—that extracted fossil fuels or refined crude oil and whose products
are determined to have contributed more than one billion metric tons of
greenhouse gas emissions globally. However, the two bills differ slightly in
the period of emissions they seek to cover. LD 1808 targets emissions occurring
between January 1, 2000, and December 31, 2024, while LD 1870 expands that
timeframe to include emissions dating back to January 1, 1995. In both cases,
liability is limited to entities with a sufficient legal nexus to the State of
Maine to meet constitutional requirements.
Prior to making cost recovery
demands for compensatory payments, DEP would be tasked with calculating each
entity’s emissions share using a yet-to-be determined methodology, in
conjunction with using publicly available greenhouse gas emissions factors
published by the U.S. Environmental Protection Agency (EPA). Affiliated
companies within a "controlled group" would be treated as jointly and
severally liable, mirroring CERCLA’s treatment of multiple responsible parties
at Superfund sites. Importantly, only entities with a sufficient legal nexus to
Maine would be subject to liability, a provision likely intended to protect
against constitutional challenges.
What Is the
Collection Process and What Would The Collected Payments Be Used For?
Under both bills, DEP is
authorized to issue cost recovery demands to responsible parties. These
entities may choose to pay their assessed share in a lump sum or in nine annual
installments, with interest. Each bill provides entities the right to seek
reconsideration of an assessment or to pursue judicial review in Superior
Court.
All payments collected from
responsible parties would be deposited into a dedicated fund to be used by the
State for climate change adaptation projects across Maine, including reinforcing
public infrastructure, upgrading stormwater management systems, expanding
nature-based solutions like wetlands restoration, and enhancing energy grid
resilience. While LD 1808 emphasizes disadvantaged communities through
implementation strategy and rulemaking, LD 1870 mandates that at least 35% of
the funds be used specifically for adaptation projects benefitting low-income
or environmental justice communities.
What Are The
Hurdles Facing Any Such Program?
Both LD 1808 and LD 1870 draw
from CERCLA's strict, joint and several liability model. While CERCLA focuses
on the cleanup of discrete contaminated sites, Maine's proposed legislation
seeks to address alleged widespread damages resulting from cumulative
greenhouse gas emissions over decades. This expansion of Superfund principles
into a global environmental context presents new complexities, particularly in
establishing proportional responsibility for diffuse climate impacts.
Legal challenges can be
expected, particularly concerning both proposed laws’ retroactivity, potential
violations of the Commerce Clause, and Federal preemption (i.e., that the law
intrudes upon areas traditionally governed by Federal environmental policy).
These preemption concerns are further amplified by President Trump’s April 8,
2025 Executive Order entitled “Protecting American Energy From State
Overreach,” which directs Federal agencies to challenge state-level
policies that “burden or penalize” domestic energy production. While the scope
and enforceability of the Executive Order remain to be clarified, it signals the
start of an aggressive Federal posture that is likely to further complicate
state-led efforts like the legislation being proposed in Maine, particularly
where such efforts aim to directly target past conduct of large-scale fossil
fuel producers.
In fact, both of Maine's
proposals follow similar efforts undertaken in New York and Vermont, each of
which are now facing lawsuits challenging their constitutionality—including two
lawsuits filed by the U.S. Department of Justice just this past week.
Anticipating these issues, sponsors for both of the bills have included a
requirement that responsible parties have a sufficient nexus to the state of
Maine and that DEP rely upon a detailed emissions attribution process utilizing
publicly-available data to calculate liability.
How Do Maine’s
Proposals Compare To New York’s Existing Climate Change Superfund Act?
While both of Maine’s proposals
share several core features with New York’s recently-enacted Climate Change
Superfund Act—notably the reliance on strict liability, proportional emissions
attribution, and a state-administered fund for climate adaptation—there are key
differences in design and scope.
First, the covered periods
differ: Maine’s LD 1870 and 1808 look at emissions from 1995 to 2025 and 2000
to 2024, respectively, while New York’s Act covers 2000 to 2018. Maine’s more
extended window may capture a broader range of more recent emissions data,
while New York’s cutoff predates several recent spikes in emissions and extreme
weather events that resulted in significant natural resource and property damage.
Second, while both states
target fossil fuel extractors and refiners, New York’s legislation specifies a
total cost recovery target: it seeks to recover $75 billion, assessed over a
25-year period at approximately $3 billion per year. Both of Maine’s bills, in
contrast, apparently leave the calculation of costs attributable to climate-related
damage in Maine to be determined by the DEP based on the state’s actual
climate-related expenditures, without setting a predetermined target.
Third, New York’s law is quite explicit
about how the collected funds must be spent, with specific allocations for
nature-based solutions, energy infrastructure, stormwater upgrades, and
projects benefiting disadvantaged communities. Maine’s bills similarly
emphasize environmental justice drivers but grant broad discretion to the DEP to
develop (via rulemaking) and implement a “Resilience Implementation Strategy.”
Finally, Maine’s legislation
takes a more cautious approach to legal risks. Both bills explicitly require
that entities subject to cost recovery have a “sufficient connection” to Maine—language
that, presumably, is designed to withstand Commerce Clause challenges. New
York’s law includes similar protections, but Maine’s more deliberate emphasis
on nexus and reliance on "best available science" methodologies
reflects a heightened sensitivity to the constitutional critiques already being
levied against New York’s statute.
What Is The Status Of The Maine Bills
LD
1808 was printed on April 29, 2025, and referred to the Environment and Natural
Resources Committee. LD 1870 followed shortly after (printed on May 5, 2025)
and was referred to the same committee. A joint public hearing on both bills
was held on May 5, 2025.
During
the hearing, Maine DEP Commissioner Loyzim testified neither for nor against
either bill but cautioned the Committee that adopting some version of either
bill at this time would create a significant administrative burden for the
agency. Commissioner Loyzim emphasized DEP would require substantial legal and
technical resources to implement and potentially defend the program.
At
the public hearing there was also some discussion among committee members about
the possibility of carrying over one or both bills into the next legislative
session. A work session is expected to be scheduled in the coming weeks. As of
this writing, a Fiscal Note has not yet been published for either LD 1808 or LD
1870—an omission that may further complicate the Committee’s ability to assess
the scope and feasibility of implementation.
As
with many large-scale environmental legislative proposals, the future of LD
1808 and LD 1870 remain uncertain amid the myriad of legal, fiscal, and
political complexities involved.
