Maine’s Proposed Climate Superfund Legislation: Borrowing a Page From CERCLA to Address Climate Costs

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.