Drew Ketterer served as Maine’s attorney general from 1995 to 2001, and as the president of the National Association of Attorneys General from 2000 to 2001. His legal practice formerly or currently represents major petroleum companies that have opposed climate superfund laws in other states.

Mainers have always valued their independence and pragmatism at solving policy problems. With divisive national politics, combatting issues like climate change in Maine must take consensus-building to advance legally sound policies to lower carbon emissions, protecting both our environment and economy.

This is why our state’s Department of Environmental Protection Commissioner Melanie Loyzim, in a public hearing last year, urged state lawmakers to delay action on adopting a so-called “climate superfund,” LD 1870.

Proposed in 2025 by Rep. Grayson Lookner and Sen. Stacy Brenner, the bill would require American energy companies to pay for a state superfund for mitigation and adaptation projects for extreme weather due to decades of greenhouse gas emissions statewide.

Central to Commissioner Loyzim’s testimony was the legal murkiness of such proposals, which have prompted challenges in other states. These concerns are not unfounded, as climate superfunds are neither the legal nor practical approach that Maine policymakers must abandon in favor of viable and effective solutions to lower carbon emissions.

Specifically, Commissioner Loyzim stated that “[a]dopting some version of a climate superfund in Maine now creates an administrative burden for the department to develop a program that may be struck down by judges in the coming year.”

This comes after Vermont and New York have passed climate superfund laws of their own that are already facing a widening array of legal challenges. New York’s December 2024 law, which seeks $75 billion from oil and gas companies over the next 25 years, has already been sued by 23 state attorneys general and other groups over jurisdictional claims and due process concerns.

These legal challenges to superfunds would hamper our state’s effort to lower carbon emissions and put us back at square one. Last year, the Justice Department filed lawsuits against Vermont and New York, arguing that federal authority preempts state regulation over interstate commerce and national environmental standards.

This actually has roots in American Electric Power Co. v. Connecticut (2011), an 8-0 Supreme Court ruling that declared that regulating emissions is left up to the federal government and Environmental Protection Agency (EPA) under the Clean Air Act. Issues around due process, retroactive liability for activities that were legal at the time and constitutional limits on the Interstate Commerce Clause are tangible precedents that would make state climate superfunds an exceedingly risky and futile strategy for Maine.

More than their legal limitations, the regulatory back and forth our state would face makes implementing a climate superfund difficult. These superfunds are based on the federal Comprehensive Environmental Response, Compensation and Liability Act, which imposes specific taxes on energy companies for distinct incidents like oil spills.

However, these climate superfunds leave the responsible parties and liability determinations vague and varied. New York’s law covers the period of 2000 to 2018 while Vermont’s covers 1995 to 2024, both directed at American energy companies even though foreign state-owned energy companies like Saudi Aramco, Coal India and China’s CHN Energy are the biggest global polluters. With Maine’s proposed law leaving compensatory payments up to the Department of Environmental Protection under a to-be-determined methodology, this makes our superfund even more impractical and illogical.

By generally taxing energy companies, these de facto tax increases will likely get passed on to consumers and families of all socioeconomic levels, thereby increasing energy bills for families and businesses across our state.

According to The Maine Monitor, between 2014 and 2024 Maine residents faced the third-fastest growing electricity rate in the country, far above the national average and only behind California and Massachusetts. Under such a superfund law, Maine residents and businesses face only more expensive energy bills, suppressing economic growth.

Maine faces significant challenges in fighting climate change, yet due to climate superfunds’ legal and practical limitations, there are clearly more comprehensive, impactful and sound policy options than LD 1870 that should be considered. Policymakers must focus on practical and bipartisan solutions to protect our environment and economy, abandoning the climate superfund proposal again this year, as Commissioner Loyzim has previously advocated.