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NY climate lawsuit is about grabbing green, not going green
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In an attempt to commit legislative thievery, New York Democrat Governor Kathy Hochul signed a bill into law on December 26 dubbed the “climate superfund” law.
The new state law assigns a handful of energy producers sole blame for climate change and imposes corresponding financial responsibility for damages alleged to have resulted from it in the past, or which may occur in the future. It compels the oil and gas companies to pay a shared $75 billion fine into a so-called “climate superfund.” New York was the second state to launch such a superfund. Vermont did so last July, and it is battling a legal challenge to its law filed on December 30.
A civil lawsuit challenging the New York law has also been filed in federal court on February 6 by state attorneys general, representing 22 states that will be harmed if New York’s law can extraterritorially limit energy production in those states. The states persuasively allege multiple counts of unconstitutional overreach.
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These climate superfund laws are, in effect, blue states’ attempt to find a new way to legislatively do what they’ve been prohibited from doing in court. Blue states and blue municipalities have been trying to convince courts that they have the power to invent new liabilities under the guise of public nuisance or consumer fraud based on contrived theories that torture the foundational limits of tort law. But they’re floundering in that arena. One by one, the courts are increasingly dismissing the adventure.
Nationwide climate lawsuits are targeting the energy industry but so far have failed. FILE: Pump jacks operate in front of a drilling rig in an oil field in Midland, Texas. (Reuters/Nick Oxford)
For example, on February 5, a New Jersey Superior Court dismissed New Jersey’s climate lawsuit against ExxonMobil, Chevron, ConocoPhillips, Phillips 66, Shell and the American Petroleum Institute, ruling that climate change claims are preempted by federal common law.
This adds to the downward momentum of climate change suits. Cases initiated by Baltimore, San Francisco/Oakland, New York City, and many others have been similarly dismissed. And scheduled for March 20, a District of Columbia suit against the energy companies will be heard in the D.C. Superior Court, considering the defendants’ motion to dismiss.
Don’t bet on the legislative efforts by New York, Vermont, and others following the climate superfund legislative model faring any better.
Like the failed climate cases, the superfund law is New York’s attempt to carve out climate policy that, under the Clean Air Act, is ground claimed by the federal government to the exclusion of the states. Federal law preempts attempts for the states to get involved in controlling transboundary pollution. On that basis alone, courts can enjoin state efforts when they meddle in an area preempted by federal legislation.
But there are plenty of other defects too. It’s easy to see the climate superfund law as cash-strapped New York’s blatant attempt to pick a select few out-of-state pockets to pay for a problem with innumerable contributors. Compelling a few energy producers to cough up hundreds of millions if not billions of dollars in what amount to fines, no matter how the fees are stylized, is quite simply excessive. And the Constitution’s Eighth Amendment prohibits the imposition of “excessive fines” and the U.S. Supreme Court has recently shown a propensity to give that clause real meaning and enforcement.
Fairness problems also come into play with these laws because they are retroactive — choosing the fund contributors based on past market share as a way to punish them for being successful at lawfully keeping our lights on, our homes warm and our economy running.
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The Fourteenth Amendment demands that state law shall not “deprive any person of life, liberty or property without due process of law,” and the courts make clear that due process does not exist when laws apply retroactively and punish past lawful conduct. These laws violate that guarantee precisely because they impose a penalty for activities that were perfectly legal.
Indeed, they remain legal today. New York has not chosen to outlaw energy production. It couldn’t get away with that. But it is perversely trying to have its cake and eat it too. Energy production is legal, you’ll just be fined if you continue to do it.
Like the failed climate cases, the superfund law is New York’s attempt to carve out climate policy that, under the Clean Air Act, is ground claimed by the federal government to the exclusion of the states.
Yet another legal infirmity that dooms these new climate superfund laws is that they dispense with the obligation to prove causation – another requirement before liability can attach if due process is to be maintained. Normally, a plaintiff has a burden to prove that the defendant committed a wrong and that the wrong is the proximate cause of the injury. And, the defendant’s liability is limited to that portion of an adverse effect that they caused and no more.
A few cannot be held responsible for the emissions of the world even assuming the state overcomes the first hurdle of proving that even these few had an illegal effect on the climate. You cannot simply legislate away fundamental fairness, reflected in our causation requirements, by imposing a penalty through the legislature that you could not impose through the justice system.
Courts adjudicating the challenges to the New York and Vermont laws, and other courts that will undoubtedly receive cases from the laws other follower states are bound to adopt, should stand firm on constitutional principles and invalidate these laws. Fleecing has never been a legitimate end of the state.
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Boston Celtics
“The respect for Joe Mazzulla, the way he might see that roster … I think it’s worth watching.”
Giannis Antetokounmpo’s trade rumors seem to evolve weekly, but two teams have been linked to the former NBA champion and league MVP more than any others: the Boston Celtics and Miami Heat.
Since trade rumors initially picked up early in the offseason, it’s believed that Antetokounmpo’s preferred trade destination is a title contender in the Eastern Conference. Outside of the obvious Knicks, who are up 2-0 in the NBA Finals, there are a handful of teams that fit that bill: Detroit, Cleveland, Philadelphia, and Orlando could be considered in that tier of Eastern Conference teams.
However, most teams that have the assets to trade for Antetokounmpo would need to gut the better parts of their lineup in order to make a legal trade happen, and that would make them less likely to be contenders.
That’s the advantage Boston seemingly possesses over just about every other team Antetokounmpo would be willing to play for: its roster would not be depleted in the process of acquiring the ‘Greek Freak’.
Speaking on the Dan Patrick Show, The Athletic’s Sam Amick said the rumors of Antetokounmpo to the Celtics have some serious traction, at least on Antetokounmpo’s end.
“Miami is the loudest noise, you continue to hear that … yes, it appears everybody you talk to says Miami at the deadline had a deal that was close,” Amick said. “So the noise is tied to Miami, but there’s also some understanding that Giannis has questions about what that Miami roster would look like on the other side of the deal.
“I think the Celtics are a pretty intriguing option in terms of being competitive,” Amick added. “This is something we’ve heard from Giannis’s side that the intrigue is real. The respect for Joe Mazzulla, the way that he might see that roster. Do I think it changes things? I don’t know yet. But I think it’s worth watching.”
The seemingly obvious piece for Boston to send back, whether to the Bucks or a third involved team, is Jaylen Brown. Brown has a similar contract to Antetokounmpo’s, and is a quality enough player that he could be the only player the Celtics trade away in the deal, giving them plenty of runway to compete for a championship in the aftermath.
So, from a salary cap-balancing perspective, the trade could be done easily. But Boston will have other factors to consider. Does the fit with Antetokounmpo and Jayson Tatum together make sense and will it lead to a better title shot? And, even if Brad Stevens thinks it is, does it make sense to trade away your longest tenured player who has already proven he can win a championship alongside Tatum.
Brown’s name has been dangled in a few different rumored trade scenarios over the last few offseasons, but no other occasion has had this much traction behind it.
And for the Bucks, trading Antetokounmpo appears to be a near-certainty at this juncture.
“It seems very likely … it’s not often you have an owner publicly framing the timeline, and that’s what Jimmy Haslem did. We just saw Jimmy Haslem do a blockbuster trade with Myles Garrett in the NFL, showing he’s certainly ready to pull that trigger if he needs to. I do expect it to happen.”
So the Heat and Celtics, who have built quite a fierce rivalry in the 21st century, and especially with their recent playoff clashes, will be pitted against each other once more. This time, Antetokounmpo is up for grabs.
Stevens entered the offseason saying he’d do everything in his power to make Boston a more competitive team and bring them another championship. He also said he’d take a dunk over a 3-pointer on every possession if he could. If he lands Antetokounmpo, he just might get both his wishes.
PHOTO BY DAVE BRYCE PHOTOGRAPHY
From warm maple and mossy green finishes on its cabinetry to the brass plumbing fixtures on the sink, the kitchen of this Treesdale home in Adams Township is all about natural warmth and soft color.
It’s a space that architect Robert Gaskill of Gaskill Architecture, who spearheaded the renovation project, describes as timeless and collected.
“The classic cabinetry, use of natural stone, brass hardware and rich, warm maple wood tone has been relevant for decades and will continue to age beautifully,” Gaskill says. “Rather than leaning into trendy design elements, this kitchen design focuses on authenticity. The layered materials give this kitchen timeless character, which makes it feel as if it evolved over time rather than being tied to a specific moment.”
PHOTO BY DAVE BRYCE PHOTOGRAPHY
The kitchen’s ageless design led to it being named Best Renovated Kitchen in Pittsburgh Magazine’s Best of Design contest.
“I think the kitchen feels really cozy; it’s going to be a great place for people to gather,” says judge Katie Savakis, a project designer at Vocon’s Cleveland office. “This kitchen feels very Ralph Lauren, but in the best way.”
Judge Crystal Knapik, an architect and senior associate at CannonDesign in St. Louis, also praised the contrast in the materials.
“I like how they choose that mossy green to be the main character of the kitchen,” she says. “They balanced the dark tones with the bright white ceiling and the white marble on the island.”
Art Rectenwald purchased the home in 2022 and shares it with his wife, Irinia, and his daughter, Annabelle. (“Plus two dogs, two cats, ten chickens and five horses,” he adds.)
The kitchen renovation originally wasn’t part of an overall home addition, but as the project evolved, it became clear the existing builder-grade space wasn’t going to cut it. Rectenwald says that the previous kitchen was “bland and low quality,” but calls the updated space “cozy, beautiful and efficient.”
PHOTO BY DAVE BRYCE PHOTOGRAPHY
Irina Rectenwald is an architect specializing in environmental design, and her husband says her vision and research provided the primary inspiration for the space. Gaskill seconds this, adding that the selections were “heavily guided by the homeowners’ aesthetic preferences and style.”
The cabinetry pairs a warm maple finish on the range wall and island with a mossy green painted finish on the side elevations. The refrigerator is fully integrated within tall maple cabinetry, allowing it to blend seamlessly into the design. Two tiled towers also frame the range wall, introducing texture while creating niches for displaying personal objects.
“The tiled corner niches are my favorite,” Rectenwald says. “Our corners now display sculptures and artwork versus blenders and coffee makers.”
The homeowners add it feels good to know that their vision, and the hard work that went into bringing the space to life, is appreciated.
“The finished product is everything and more of what we hoped for,” Rectenwald says. “Every detail turned out how we envisioned or better.”
Vendors
Architectural Design: Gaskill Architecture
Interior Design: Gaskill Architecture
General Contractor: TK Construction
Cabinetry: Beahm and Son Ltd. Custom Cabinetry
Fixtures: Brizo
Countertops: Top It Off Granite
Tile: The Tile Shop
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