The viral “act of God” story gets important parts of the law wrong. But the real precedent Vermont is trying to establish could be far more consequential for American homeowners, taxpayers, businesses, and state governments.
Updated July 21, 2026
Every major disaster arrives twice.
First comes the water, wind, fire, or heat. Then comes the invoice.
In July 2023, between three and nine inches of rain fell across Vermont within roughly 48 hours. Rivers rose to record levels, sometimes surpassing marks set during Tropical Storm Irene in 2011. Roads washed out. Homes and businesses flooded. Public infrastructure failed under the pressure of water moving through places never designed to receive so much of it at once. (USGS)
The rain eventually stopped. The expenses did not.
Someone had to rebuild the roads, reinforce bridges, repair wastewater systems, protect drinking water, restore damaged communities, and prepare for the next storm. The bills were divided among homeowners, insurers, local governments, state agencies, federal disaster programs, utility customers, and taxpayers who may have lived hundreds of miles from the flood.
Vermont’s response was not to declare that rain had ceased to be natural. It was to ask a more difficult question:
When human-caused warming increases the risks and costs that states must manage, should taxpayers bear almost all of those expenses—or may the government require the largest fossil-fuel producers to pay a proportional share?
That question produced Vermont’s Climate Superfund Act, the first law of its kind in the United States. It has also produced a major federal constitutional battle that could influence climate policy far beyond Vermont. New York has already enacted a similar law, and lawmakers elsewhere are studying the same model. (Vermont Public)
The case has sometimes been described online as the legal death of the “act of God” defense. That description is memorable, emotionally satisfying—and legally inaccurate.
The real case is more complicated. It is also more important.
The essential facts
Vermont’s Climate Superfund Act:
- Became law on May 30, 2024, and took effect on July 1, 2024.
- Covers qualifying greenhouse-gas emissions associated with fossil fuels extracted or refined from January 1, 1995, through December 31, 2024.
- Applies only to entities attributable for more than one billion metric tons of carbon-dioxide-equivalent emissions during that period.
- Uses strict statutory liability, meaning Vermont would not need to prove negligence by each company.
- Allocates costs proportionally according to each responsible party’s share of covered emissions.
- Directs the money toward climate adaptation projects inside Vermont rather than individual damage awards to homeowners.
- Remains under challenge in federal court.
Most importantly, the Vermont Supreme Court has not upheld this law. As of July 21, 2026, the federal challenges remain pending, and no court has issued a final merits ruling on whether Vermont’s program is constitutional. U.S. District Judge Mary Kay Lanthier heard arguments on major motions on March 30, 2026, and took them under advisement. (Vermont General Assembly)
The viral version of the story—and why it is wrong
A popular version of the story goes something like this:
For centuries, insurance companies escaped responsibility by calling floods “acts of God.” Vermont courts later ruled that a natural disaster mixed with human negligence is really an act of man. Vermont then passed a law holding oil companies liable, and the Vermont Supreme Court upheld it. Now a federal judge will decide whether the act-of-God defense survives.
Nearly every part of that account contains either an exaggeration or a conflation of separate legal issues.
There are actually three different legal subjects involved:
- The traditional act-of-God defense in tort, contract, transportation, and environmental law.
- Vermont’s Climate Superfund Cost Recovery Program.
- A separate Vermont consumer-protection lawsuit accusing oil companies of deceptive climate marketing.
They overlap thematically, but they are not the same case.
The current federal litigation does not ask whether God or humanity “caused” Vermont’s floods. It asks whether a state may calculate its climate-related costs and impose a proportional, retrospective assessment on large fossil-fuel producers whose products contributed to global greenhouse-gas emissions.
That may sound less dramatic. Constitutionally, it is a much larger question.
What Does “Act of God” Actually Mean in Law?
“Act of God” sounds theological, but it is a legal term rather than a religious judgment.
The precise definition depends on the relevant statute, contract, and jurisdiction. Generally, the concept refers to an extraordinary natural event that human foresight, reasonable care, or intervention could not have prevented. The defense is usually strongest when the natural event is the sole legally responsible cause of the loss.
It becomes much weaker when human conduct helped create the danger, worsened the damage, exposed property to an unnecessary risk, or prevented reasonable protection against the event.
That does not mean every hurricane, drought, wildfire, or flood influenced by climate change automatically becomes an “act of man.” Legal responsibility requires more than showing that human activity affected the climate. Courts must still consider the governing law, the defendant’s relationship to the harm, causation, foreseeability, jurisdiction, and available defenses.
The Vermont precedent involved horses—not climate change
The old Vermont case most relevant to this discussion is Benoit v. Central Vermont Railway, decided by the Vermont Supreme Court in 1950.
It did not involve flooding, oil companies, atmospheric science, or insurance claims. It involved a shipment of 20 horses.
The railway departed from the agreed transportation route, and the horses became ill. The court explained that when a carrier makes an unjustified deviation, it may remain responsible even when the immediate source of the loss would ordinarily qualify for an exemption such as an act of God. To escape liability, the carrier would need to establish that the same loss certainly would have occurred even without the deviation.
The court also discussed an older Vermont shipwreck case in which the carrier had the burden of separating damage caused solely by natural forces from damage connected to the carrier’s conduct. (Justia)
The principle is sensible:
A natural force does not necessarily erase human responsibility when human conduct materially contributed to the loss.
But Benoit is a common-carrier case. It does not establish that fossil-fuel companies are legally responsible for Vermont’s climate-adaptation costs. It certainly does not constitute a Vermont Supreme Court decision upholding the Climate Superfund Act.
At most, it illustrates a broader legal idea: nature and human responsibility are not always mutually exclusive.
The act-of-God defense still exists
The act-of-God concept has not disappeared from American law. Federal environmental law provides a useful example.
The federal Comprehensive Environmental Response, Compensation, and Liability Act—better known as CERCLA or the federal Superfund law—generally imposes powerful forms of liability on parties responsible for hazardous contamination. Yet CERCLA still recognizes a narrow act-of-God defense, along with defenses involving war and certain unrelated third parties. (US EPA)
Vermont’s climate law does not repeal CERCLA’s defense, rewrite every insurance contract, or abolish the act-of-God doctrine nationwide.
The phrase survives. The more interesting question is how useful it remains when science can detect measurable human contributions to supposedly natural hazards.
Why the Insurance Claim Is Also Misleading
The viral story suggests that homeowners routinely lose flood claims because insurance companies simply declare the disaster an act of God.
That is not how most American flood-coverage disputes work.
Standard homeowners insurance generally excludes flooding. Property owners normally need a separate flood policy, often obtained through the National Flood Insurance Program or a private flood insurer. When a standard homeowners insurer refuses to pay for flood damage, it usually relies on the policy’s flood exclusion—not on a philosophical claim that God caused the water. (FEMA)
This distinction matters because three separate questions are often mixed together:
- Insurance coverage: Does the homeowner’s policy cover this type of damage?
- Tort liability: Did another party’s legally wrongful conduct cause or worsen the damage?
- Statutory cost recovery: Has the legislature created a legal obligation to contribute to a public fund?
Vermont’s Climate Superfund Act concerns the third question.
It does not rewrite homeowners policies. It does not require private insurers to cover excluded floods. It does not automatically give a flooded homeowner a claim against an oil company.
Instead, it creates a state-administered system for financing climate adaptation.
What Vermont’s Climate Superfund Act Actually Does
Vermont’s program borrows its basic logic from the federal Superfund system:
- Identify a category of responsible parties.
- Calculate the public costs associated with a form of environmental harm.
- Allocate financial responsibility among qualifying parties.
- Deposit the money into a fund used to address or prevent that harm.
The analogy is useful, but the two laws are not identical.
Federal Superfund law traditionally addresses hazardous substances connected to contaminated locations. Vermont’s law addresses the costs of adapting to climate change across an entire state. It therefore attempts to translate a legal model designed for polluted sites into one capable of addressing cumulative, global emissions. (US EPA)
That is the law’s central innovation—and the source of many of its constitutional problems.
Who can be classified as a responsible party?
Vermont’s law does not target local gas-station owners, ordinary motorists, homeowners who heated their houses with oil, or small energy companies.
A responsible party must generally be an entity—or a qualifying successor to an entity—that:
- Extracted fossil fuels or refined crude oil during the covered period.
- Is attributable for more than one billion metric tons of covered greenhouse-gas emissions.
- Has enough of a connection with Vermont to satisfy constitutional nexus requirements.
The emissions are associated with the eventual use of fossil fuels extracted or refined by the entity. The law therefore reaches not only emissions from a company’s own facilities but also emissions produced when customers use the fuels it brought into the market. (Vermont General Assembly)
The billion-ton threshold is intended to limit the program to extremely large producers and refiners.
What “strict liability” means
Strict liability does not mean unlimited liability. It means Vermont would not need to prove that each responsible company was careless, dishonest, malicious, or in violation of an emissions rule.
Once the state determines that an entity falls within the statutory definition, the obligation arises from the law itself.
That is a major departure from an ordinary negligence lawsuit. A negligence plaintiff generally must prove a duty, breach, causation, and damages. Vermont’s statute attempts to replace that company-by-company inquiry with an administrative allocation system.
This is why the law should not be confused with Vermont’s deceptive-marketing lawsuit. The Climate Superfund Act does not require proof that a company lied about climate science. A company could theoretically be assessed even if it marketed every product honestly and complied with every applicable regulation.
Supporters describe this as a rational way to allocate unavoidable costs.
Opponents describe it as retroactive punishment for lawful conduct.
The court will eventually have to decide which description better fits the law for constitutional purposes.
How Vermont would calculate each company’s share
The statute’s basic formula can be simplified as:
Company assessment = Vermont’s qualifying climate costs × the company’s proportional share of covered emissions
The Vermont State Treasurer must first estimate the costs that covered greenhouse-gas emissions have imposed—and are projected to impose—on Vermont and its residents. The assessment must examine areas such as public health, housing, agriculture, biodiversity, economic development, flood preparedness, natural resources, and the cost of reducing or adapting to those effects. (Vermont General Assembly)
The state would then calculate the emissions attributable to each responsible party using fossil-fuel production data and EPA emissions factors.
Consider a simplified hypothetical:
- Vermont calculates $10 billion in qualifying costs.
- A particular company is attributed 8 percent of the emissions assigned to all covered responsible parties.
- Its preliminary cost-recovery demand would be approximately $800 million.
That example is illustrative only. Vermont has not announced that $10 billion figure or assessed that hypothetical company.
What the money could fund
The statute authorizes an unusually broad range of adaptation projects, including:
- Floodplain and wetland restoration.
- Home buyouts in repeatedly flooded areas.
- Stormwater drainage improvements.
- More resilient roads, bridges, rail systems, and public transit.
- Wastewater plants protected from flooding.
- Public-health programs addressing heat, smoke, and climate-related illness.
- Cooling and weatherization improvements in schools and public housing.
- Electrical-grid resilience and local microgrids.
- Agricultural and soil protections.
- Responses to harmful algae, crop loss, forest threats, and other ecosystem damage.
The fund may also support projects identified through Vermont’s hazard-mitigation and community-resilience programs. (Vermont General Assembly)
This is primarily a public resilience fund. It is not designed as a system for mailing reimbursement checks to every person whose basement floods.
A homeowner could benefit indirectly from a stronger drainage system, restored floodplain, safer bridge, protected wastewater plant, or government-funded buyout. But the law itself does not create an individual compensation claim for every disaster victim.
Companies have procedural rights
Although the program is based on strict liability, companies are not simply billed without recourse.
A responsible party may request administrative reconsideration of a cost-recovery demand and submit supporting documentation. After a final agency decision, it may pursue judicial review in Vermont Superior Court. The law also requires rulemaking for identifying responsible parties and determining their emissions shares. (Vermont General Assembly)
Those protections will matter. A program of this scale will generate disputes over historical production records, corporate reorganizations, successor liability, refinery accounting, emissions factors, economic modeling, and the required constitutional connection to Vermont.
Why the Program Is Not Yet Sending Out Final Bills
The statute is more of a framework than a completed invoice.
Vermont must still build a credible system for calculating decades of climate costs, identifying covered companies, assigning emissions, and avoiding double counting. A state feasibility report acknowledged that the process requires additional expertise, staffing, time, and technical resources. (Vermont General Assembly)
The current statute requires the State Treasurer’s comprehensive cost assessment by January 15, 2027. That report must calculate both historical and projected costs and examine the expenses of adapting to covered greenhouse-gas emissions. Earlier descriptions of the program sometimes identify a January 2026 deadline, but Vermont amended the statute in 2025 and moved the deadline to 2027. (Vermont General Assembly)
In practical terms, Vermont is still constructing the accounting system before it can fully operate the collection system.
That may influence the pending lawsuits. Courts sometimes hesitate to decide constitutional questions based on a program whose final methodology, affected companies, and monetary demands are not yet known.
Why the 1995 Starting Date Matters
Vermont chose January 1, 1995, as the beginning of the covered period and December 31, 2024, as its end.
That choice does not mean climate science began in 1995. It does not constitute a judicial finding that every company possessed identical knowledge by that date. It is the legislative boundary Vermont selected for assigning covered emissions. (Vermont General Assembly)
Legally, the important point is that the program looks backward.
Companies may be charged today based on fossil fuels extracted or refined decades before the statute existed. The conduct may have been lawful when it occurred. Governments actively encouraged fossil-fuel development, constructed car-dependent communities, subsidized energy production, and used petroleum products throughout public and private life.
That makes retroactivity one of the challengers’ strongest arguments.
But retroactive environmental cost recovery is not unheard of. Federal Superfund liability can reach conduct that occurred before Congress enacted CERCLA in 1980. (US EPA)
That analogy helps Vermont, but it does not decide the case. Congress was exercising federal power when it enacted CERCLA. Vermont is a state attempting to assign costs connected to products, transactions, emissions, and actors located throughout the country and the world.
The issue is not simply whether retroactive liability can ever exist.
The issue is whether this state, using this formula, may impose this type of liability on actors whose conduct occurred largely beyond its borders.
Can Science Really Trace Climate Damage to Individual Companies?
For much of the history of climate litigation, causation was a formidable obstacle.
A molecule of carbon dioxide mixes into the global atmosphere. No one can examine a Vermont rain cloud and identify which portion came from one company’s oil, another company’s natural gas, a coal plant in another country, an aircraft, a household furnace, or a forest fire.
That physical reality once made company-specific climate responsibility appear almost impossible to calculate.
Attribution science has changed the discussion.
From emissions to warming to harm
The scientific chain generally looks like this:
Fossil-fuel production → combustion and emissions → additional atmospheric greenhouse gases → additional warming → changes in the probability or intensity of hazards → measurable physical and economic damage
Each step involves data, assumptions, uncertainty ranges, and scientific models.
The Intergovernmental Panel on Climate Change has concluded that human influence has contributed to observed changes in weather and climate extremes. Its assessments examine heavy precipitation, pluvial flooding, river flooding, heat, drought, storms, and compound events. The evidence does not establish that every flood is entirely caused by climate change, but it supports the conclusion that warming can intensify the conditions that produce certain extreme events. (IPCC)
That distinction is essential.
Scientists do not ordinarily say:
“Climate change created this storm from nothing.”
They are more likely to ask:
- Did warming make the event more likely?
- Did it increase the amount of precipitation?
- Did it intensify the heat?
- How different would the event have been in a climate without the observed human influence?
The U.S. Geological Survey documented the extraordinary rainfall and record river levels during Vermont’s July 2023 flooding. That hydrological record is not, by itself, a judicial finding that any specific company caused the disaster. (USGS)
Company-level attribution is becoming more sophisticated
A 2025 study published in Nature presented an “end-to-end” method connecting emissions associated with major fossil-fuel companies to warming, extreme heat, and economic losses. The researchers argued that quantitative links between individual producers and particular categories of harm are now scientifically possible. (Nature)
That study concerned extreme heat and global economic damages—not Vermont’s 2023 flood. It should not be cited as proof that a particular oil producer legally caused a particular Vermont loss.
Its importance is methodological.
It shows that researchers can increasingly estimate:
- How much carbon is associated with a producer’s historical products.
- How much warming is associated with those emissions.
- How that warming affects a category of extreme events.
- How those changes translate into estimated economic losses.
Science may therefore be capable of generating a rational allocation model even when it cannot trace one molecule, storm, or damaged house to one defendant.
But scientific attribution and legal responsibility are not identical.
Science asks what contributed to a physical outcome.
Law asks whether that contribution is sufficiently connected, foreseeable, fair, and constitutionally reachable to justify imposing a financial obligation.
A scientifically measurable contribution does not automatically become legal liability. Conversely, the absence of one-to-one physical tracing does not necessarily prevent a legislature from designing a proportional cost-allocation system.
That is the intellectual center of the Vermont case.
The Two Federal Cases Challenging Vermont’s Law
Vermont is defending the Climate Superfund Act against two principal federal challenges.
Chamber of Commerce v. Moore
The U.S. Chamber of Commerce and the American Petroleum Institute filed Chamber of Commerce of the United States of America v. Moore in December 2024.
West Virginia and 23 other states entered the case in opposition to Vermont’s law. Their claims include arguments based on federal preemption, interstate and foreign commerce, due process, equal protection, excessive fines, takings, state separation of powers, and constitutional limits on extraterritorial legislation. (Climate Case Chart)
The industry plaintiffs argue that Vermont is attempting to impose enormous retrospective costs on lawful production conducted mostly outside the state. They contend that a small state cannot constitutionally assign financial responsibility for worldwide greenhouse-gas emissions and global climate change.
United States v. Vermont
The federal government and the Environmental Protection Agency filed United States of America v. State of Vermont on May 1, 2025.
The government argues that Vermont’s law conflicts with the Clean Air Act, intrudes into federal authority over interstate and foreign commerce, interferes with national foreign policy, and exceeds constitutional limits on a state’s ability to regulate conduct beyond its borders. (Department of Justice)
The federal complaint characterizes the program as an effort to regulate nationwide and global emissions through retrospective financial liability.
Vermont disputes that characterization.
Judge Mary Kay Lanthier heard extensive arguments on dismissal and summary-judgment motions on March 30, 2026. The motions were taken under advisement. The docket remained active, with no prevailing party or merits judgment recorded as of July 21, 2026. (Civil Rights Litigation Clearinghouse)
The Challengers’ Strongest Arguments
The constitutional challenge is not frivolous. Vermont is attempting something genuinely new, and several objections deserve serious consideration.
1. Federal preemption
The challengers argue that the federal Clean Air Act and related federal authority occupy the field of interstate greenhouse-gas regulation.
Their theory is that Vermont cannot avoid federal preemption merely by calling its program cost recovery rather than emissions regulation. If the practical purpose or effect is to impose consequences for nationwide emissions, they argue, the state is entering a field governed by federal law.
Vermont answers that the law does not set an emissions limit, dictate production levels, order companies to change their operations, or establish an air-quality standard. It raises money for in-state adaptation.
The court must decide whether the law is better understood as a state compensation measure or a disguised regulation of global emissions.
2. Extraterritorial reach
Most fossil fuels covered by the program were not extracted in Vermont. Many were refined, sold, and consumed elsewhere. Some companies that may be assessed are based outside the United States.
The challengers contend that Vermont is effectively projecting its legislative authority around the world.
The statute attempts to address that problem by excluding entities that lack a constitutionally sufficient connection to Vermont. But merely writing a nexus limitation into a law does not establish that every future assessment will satisfy it. The state will eventually need to show how a targeted company is connected to Vermont and why that connection is adequate for the liability imposed. (Vermont General Assembly)
3. Retroactive liability and due process
The covered period begins nearly three decades before the law was enacted.
Opponents argue that companies are being punished under a new legal standard for conduct that was lawful, socially accepted, and encouraged by governments at the time.
Vermont responds that the program is not a punishment for past illegality. It is a present allocation of present and future costs based on each company’s historical contribution to the problem.
The constitutional analysis may turn partly on whether courts view the assessment as genuinely compensatory or effectively punitive.
4. The causal relationship
The challengers argue that Vermont’s costs cannot be cleanly connected to any individual producer. Countless governments, businesses, and consumers participated in the fossil-fuel economy. Emissions mixed globally. Weather and climate damage result from multiple natural and human factors.
Vermont’s answer is proportional rather than absolute responsibility.
The state is not claiming that one company caused an entire flood. It is claiming that major producers collectively contributed to a measurable share of the conditions generating climate costs and that each may therefore be assigned a proportional share.
The court will need to decide whether that form of aggregate causation is constitutionally sufficient for a statutory assessment.
5. Multiple states and overlapping bills
Suppose 20 states adopt different climate-superfund laws, each using a different covered period, methodology, cost estimate, and definition of responsibility.
A company could be charged repeatedly for the same historical emissions.
Supporters may answer that one source of pollution can cause harm in many places, just as one defective product can injure multiple consumers. But the risk of inconsistent methodologies, duplicative demands, and conflicting state policies is real.
This is one reason the litigation may eventually attract Supreme Court attention.
Vermont’s Strongest Defense
Vermont and organizations supporting the law argue that states have always possessed broad authority to protect public health, property, infrastructure, agriculture, natural resources, and local communities.
Their position can be summarized as follows:
- Vermont is calculating harm suffered inside Vermont.
- The money will be spent on projects inside Vermont.
- The law does not prohibit fossil-fuel production.
- It does not establish a national emissions standard.
- It does not require a company to reduce future emissions.
- It expressly limits liability to entities with a constitutionally adequate connection to the state.
- Assessments are proportional rather than unlimited.
- Companies receive administrative and judicial review.
- The payments are described as compensation for adaptation, not criminal punishment.
Vermont’s supporting intervenors also argue that the Clean Air Act does not displace a state’s traditional authority to respond to property, health, environmental, and infrastructure harms suffered by its residents. (Conservation Law Foundation)
This creates an unusual federalism dispute.
The federal government says national and global greenhouse-gas policy is too inherently federal for one state to assign liability.
Vermont says the federal government’s authority over emissions does not require Vermont taxpayers to absorb every local adaptation cost.
Both propositions carry weight. The difficult work is determining where federal authority ends and traditional state responsibility begins.
The Separate Vermont Case Against Exxon and Other Oil Companies
The statement that a Vermont court “upheld” consumer protections against fossil-fuel companies appears to come from a different lawsuit: State of Vermont v. Exxon Mobil Corp.
That case was brought under the Vermont Consumer Protection Act against Exxon, Shell, Sunoco, Citgo, and related entities. Vermont alleges that the companies misrepresented or concealed information about the climate consequences of their products and engaged in deceptive marketing or greenwashing.
In December 2024, a Vermont Superior Court judge denied the companies’ motions to dismiss.
That ruling is important, but it must be described correctly.
It was:
- A decision by a Vermont trial court.
- A ruling that the pleaded consumer-protection claims could continue.
- Based on allegations concerning marketing and alleged deception.
It was not:
- A Vermont Supreme Court decision.
- A judgment that the companies were liable.
- A decision awarding damages.
- A ruling on the Climate Superfund Act.
- A declaration that every climate-related flood is an act of man.
At the motion-to-dismiss stage, a court generally assumes properly pleaded factual allegations are true and determines whether those allegations state a legally recognizable claim. The court itself emphasized that disputed facts and the ultimate existence of violations would be resolved at later stages.
The consumer case asks whether companies deceptively marketed products.
The Superfund litigation asks whether Vermont may impose proportional climate cost recovery without proving deception or negligence.
They involve related subject matter, but legally they are different machines.
What Precedent Could the Vermont Case Actually Establish?
The word “precedent” is often used too broadly.
An initial ruling by a federal district judge would resolve the dispute before that court and could influence judges elsewhere. It would not automatically bind every state or federal court in the United States.
An appeal would go to the U.S. Court of Appeals for the Second Circuit, whose decisions generally bind federal district courts within Vermont, New York, and Connecticut. A U.S. Supreme Court decision could establish a nationwide constitutional rule. (United States Courts)
There are at least three broad ways the litigation could develop.
Outcome one: Vermont wins
A meaningful victory for Vermont could support the proposition that a state may:
- Calculate climate-related costs suffered within its borders.
- Identify a limited class of major fossil-fuel producers.
- Use historical production and emissions data to assign responsibility.
- Impose retrospective statutory liability without proving negligence.
- Allocate aggregate costs proportionally instead of tracing one company to one disaster.
- Use the proceeds for adaptation and resilience.
That would not automatically validate every future climate-superfund law. Other statutes could use different thresholds, formulas, covered periods, or procedures.
But it would give other states a constitutional roadmap.
For the first time, governments could possess a potentially viable alternative to financing nearly all climate adaptation through general taxes, municipal borrowing, utility rates, disaster appropriations, and household losses.
Outcome two: The challengers win
A victory for the federal government or industry plaintiffs could establish that states may not independently impose this type of liability for global emissions.
A court could conclude that:
- The Clean Air Act or other federal authority preempts the program.
- The law improperly reaches conduct outside Vermont.
- The connection between producers and Vermont’s costs is constitutionally inadequate.
- The retrospective design violates due process.
- The assessments function as punitive penalties rather than compensation.
- Nationwide climate liability requires congressional action rather than separate state regimes.
Such a ruling could undermine not only Vermont’s law but also New York’s program and similar proposals elsewhere.
It could leave states responsible for adaptation while denying them this particular method of financing it.
Outcome three: The court postpones the central question
The judge could also issue a narrower procedural ruling.
Because Vermont has not completed its central cost assessment or fully implemented every rule, the court could decide that some challenges are premature. It might dismiss certain claims while allowing opponents to sue again after Vermont identifies responsible parties or issues actual demands.
That outcome would not determine whether the program is ultimately constitutional. It would merely delay the decisive confrontation.
How the Law Could Benefit Americans
The strongest argument for climate-superfund legislation begins with an uncomfortable fact:
Climate-adaptation costs do not disappear when government refuses to assign them to fossil-fuel producers.
Someone still pays.
Without a dedicated recovery program, the burden tends to move through less visible channels:
- Higher state and local taxes.
- Federal disaster spending.
- Municipal debt.
- Rising insurance premiums.
- Uninsured household losses.
- Utility-rate increases.
- Reduced public services.
- Delayed road, school, and infrastructure projects.
- Falling property values in repeatedly damaged areas.
The central political choice is not whether Americans will pay for climate risk.
It is which Americans will pay, through what mechanism, and in what proportion.
It could shift part of the burden away from taxpayers
If Vermont’s system survives and works as intended, major producers would finance part of the adaptation burden now carried largely by the public.
That would not necessarily make adaptation inexpensive. It would alter the source of the money.
For households, the difference may appear in whether a drainage project is paid through local property taxes, federal borrowing, state revenues, or an assessment on large producers.
It could prioritize prevention over repeated recovery
American disaster policy is often reactive.
A community floods. Government declares an emergency. Money is appropriated. Damaged structures are restored—sometimes in the same vulnerable location—and the process repeats after the next event.
A dedicated adaptation fund could finance protective work in advance:
- Reconnecting rivers with floodplains.
- Moving vulnerable infrastructure.
- Improving stormwater systems.
- Buying out repeatedly flooded properties.
- Hardening roads and bridges.
- Installing community cooling.
- Protecting hospitals, schools, farms, and power systems.
The economic value of a resilient bridge is not merely the cost of replacing the bridge. It includes the businesses that remain accessible, emergency vehicles that can cross, workers who can reach their jobs, and supply chains that continue functioning.
It could force governments to calculate climate costs honestly
Climate costs are often scattered across hundreds of budgets.
Flood damage appears in transportation accounts. Heat illness appears in public-health spending. Crop damage appears in agricultural assistance. Stormwater improvements appear in municipal capital plans. Insurance losses appear in private statistics. Disaster relief appears in federal appropriations.
A climate-superfund assessment requires the state to connect those costs.
Even readers who oppose producer liability may benefit from more transparent accounting. Policymakers cannot make rational decisions without knowing what climate risk is already costing and what future adaptation may require.
It could create a model for cumulative harm
American law is better at handling a single identifiable injury than a vast harm created by many contributors over decades.
Climate change exposes that weakness.
No single barrel of oil causes a flood. No single company causes global warming. No single consumer creates the statewide adaptation bill. Yet the combined harm is real.
Vermont’s model attempts to recognize that cumulative causation does not mean causation disappears. It means responsibility must be allocated rather than treated as all-or-nothing.
That principle could eventually influence other areas involving diffuse harms, including toxic chemicals, plastics, water contamination, and products with long-term public-health consequences.
Could Companies Simply Pass the Cost to Consumers?
Possibly—but not necessarily in the simple way both sides sometimes claim.
Supporters may overstate the case when they promise that consumers will bear none of the cost. Corporations can respond to new financial obligations by changing prices, reducing investment, selling assets, cutting expenses, renegotiating contracts, or accepting lower profits. The final economic burden can be divided among shareholders, executives, employees, suppliers, customers, and communities.
Opponents may also overstate the case when they suggest that every dollar assessed will automatically appear at the gasoline pump.
Vermont’s program is not structured as a per-gallon retail tax. It concerns historical production, company-specific emissions shares, and statewide adaptation costs. Whether a particular producer can pass an assessment to future American customers depends on competition, global prices, contracts, company finances, the timing of payments, and the availability of substitutes.
The honest conclusion is that some costs could be passed through, but neither zero pass-through nor complete pass-through should be assumed without evidence.
The Strongest Criticism of Vermont’s Approach
The hardest criticism is not that climate change is imaginary or that adaptation is unnecessary.
It is that Vermont is attempting to create a precise company-specific invoice from an extraordinarily complicated history involving producers, governments, investors, consumers, technologies, wars, subsidies, regulations, and billions of individual choices.
A credible program must answer difficult questions:
- How should emissions from refined oil be divided between the extractor and refiner?
- How should mergers and successor companies be treated?
- How should foreign state-owned producers be handled?
- How should Vermont separate climate-related costs from damage that would have occurred anyway?
- How should it prevent double counting?
- How should future costs be discounted?
- What happens when several states charge for the same emissions?
- How reliable are production records from the 1990s?
- How should uncertainty ranges affect a company’s bill?
- What connection to Vermont is constitutionally sufficient?
- Which costs are genuinely compensatory, and which resemble punishment?
If Vermont produces a transparent, reproducible, scientifically credible methodology with meaningful review rights, its case becomes stronger.
If the state produces an opaque political number and works backward to justify it, the program will deserve to fail.
Accountability requires more than choosing a politically unpopular defendant. It requires an allocation process capable of surviving hostile review.
The Deeper American Question
The Vermont litigation is often presented as a culture-war fight between environmentalists and the oil industry.
That framing is too shallow.
The deeper issue is how American law handles harm that is:
- Cumulative rather than singular.
- Probabilistic rather than absolute.
- Global in origin but local in cost.
- Produced by lawful activity.
- Shared among corporations, consumers, and governments.
- Scientifically measurable but impossible to trace molecule by molecule.
Traditional tort law prefers a recognizable plaintiff, a particular defendant, a specific wrongful act, and a direct causal chain.
Climate change rarely arrives in that form.
It arrives as a statistical shift: heavier rainfall, hotter heat waves, greater wildfire conditions, higher seas, altered growing seasons, repeated infrastructure failure, and insurance markets that no longer price risk as they once did.
Vermont is attempting to convert that statistical contribution into a financial obligation.
The law may be too ambitious. It may exceed constitutional limits. Its formula may prove administratively unworkable. Its assessments may be struck down or substantially narrowed.
But the underlying problem will remain even if every court invalidates the statute.
Roads will still need to be elevated. Sewage plants will still need protection. Floodplains will still need restoration. Homes will still be damaged. Insurers will still recalculate risk. Governments will still spend money.
A successful legal challenge can eliminate a funding mechanism.
It cannot eliminate the invoice.
Conclusion: This Is Not the End of the “Act of God” Defense
Vermont has not declared that every storm is an act of man.
Its Supreme Court has not upheld the Climate Superfund Act. The pending federal litigation does not directly determine whether the act-of-God defense survives. The law does not guarantee payments to individual homeowners, and it does not require proof that any company deceived the public.
What Vermont has done is both narrower and more radical.
It has proposed that the financial consequences of climate change can be measured, divided, and assigned—not perfectly, but rationally—among the largest producers whose products contributed to cumulative emissions.
The legal question is whether Vermont has the constitutional authority to do that.
The policy question is whether producer-funded adaptation is fairer than placing nearly the entire burden on homeowners and taxpayers.
And the unavoidable practical question is this:
When the next flood arrives, who should pay to rebuild what was lost and protect what remains?
Calling the disaster an act of God does not answer that question.
It merely avoids it.
Frequently Asked Questions
Did the Vermont Supreme Court uphold the Climate Superfund Act?
No. The Vermont Supreme Court has not issued a ruling upholding Act 122. The principal challenges are pending in the U.S. District Court for the District of Vermont. As of July 21, 2026, the court had not issued a merits decision. (Civil Rights Litigation Clearinghouse)
Does the law abolish the act-of-God defense?
No. The Climate Superfund Act creates a statutory cost-recovery program. It does not repeal the act-of-God doctrine in tort, contract, insurance, federal environmental law, or other legal contexts.
Does the law allow every flooded homeowner to sue an oil company?
No. The program is designed to collect payments for a state fund supporting adaptation and resilience projects. It does not automatically create a private lawsuit for every homeowner experiencing climate-related damage.
Which companies can be charged?
The statute covers qualifying fossil-fuel extractors, crude-oil refiners, and certain successors attributable for more than one billion metric tons of covered greenhouse-gas emissions from 1995 through 2024, provided they have a constitutionally sufficient connection with Vermont. (Vermont General Assembly)
Has Vermont completed its climate-cost assessment?
The comprehensive State Treasurer assessment is currently due on January 15, 2027. It must examine historical and projected costs involving health, housing, agriculture, natural resources, flood preparedness, economic development, and adaptation. (Vermont General Assembly)
What would a Vermont victory mean nationally?
It could provide a legal model for states seeking to allocate climate-adaptation costs to major producers. A federal district-court decision would not automatically bind the entire country, but an appellate or Supreme Court decision could establish much broader precedent.
References and Further Reading
Vermont law and program documents
- Vermont Statutes, Title 10, Chapter 24A: Climate Superfund Cost Recovery Program
The current statutory text, including the definitions of responsible parties, covered emissions, strict liability, proportional allocation, permitted projects, review rights, and the January 15, 2027 cost-assessment deadline. - Vermont Act 122 as Enacted
The original 2024 legislation establishing the Climate Superfund Cost Recovery Program. - Vermont Legislature Bill Status for S.259, Act 122
Official legislative history, sponsorship, committee activity, and enactment information. - Act 122 Climate Superfund Cost Recovery Program Feasibility Report
Vermont’s January 2025 report describing implementation requirements, methodological challenges, staffing needs, deadlines, and program development. - Vermont Public: Vermont Becomes the First State to Adopt a Climate Superfund Law
Accessible background on the law’s enactment, political context, and intended operation.
Federal litigation
- United States v. Vermont—Docket and Case Summary
Current federal docket information for the federal government’s challenge, including motions, hearing entries, case status, and available filings. - United States v. Vermont—Climate Litigation Database
Organized collection of complaints, motions, responses, and other documents in the federal case. - Federal Complaint in United States v. Vermont
The Justice Department and EPA’s original complaint alleging federal preemption, unconstitutional extraterritoriality, Commerce Clause problems, and interference with foreign affairs. - Justice Department Motion for Summary Judgment
The federal government’s detailed argument for invalidating Vermont’s law. - Chamber of Commerce v. Moore—Climate Litigation Database
Documents and procedural history for the separate challenge brought by the U.S. Chamber of Commerce and American Petroleum Institute. - NRDC Collection of Climate Superfund Litigation Documents
A consolidated collection of filings from the Vermont and New York climate-superfund cases, including arguments from both governments and intervening organizations. - Vermont Public: Vermont Defends Its Climate Superfund Law in Federal Court
Reporting on the March 30, 2026 federal hearing and the principal arguments presented by the parties.
Vermont cases discussed in the article
- Benoit v. Central Vermont Railway, Vermont Supreme Court, 1950
The common-carrier case involving a route deviation, injured horses, and the limits of relying on an act-of-God defense. - State of Vermont v. Exxon Mobil Corp., December 2024 Order
The Vermont Superior Court decision denying fossil-fuel defendants’ motions to dismiss the state’s separate consumer-protection lawsuit. - State v. Exxon, March 2025 Interlocutory Review Decision
A later trial-court ruling denying requests for immediate appellate review of the December 2024 decision.
Climate science and attribution
- IPCC Sixth Assessment Report, Working Group I, Chapter 11
The IPCC’s assessment of changing weather and climate extremes, including heavy precipitation, pluvial floods, river flooding, drought, storms, and compound events. - Nature: “Carbon Majors and the Scientific Case for Climate Liability”
A 2025 peer-reviewed study presenting an end-to-end framework linking company-associated emissions to warming, extreme heat, and economic losses. - Nature: “Systematic Attribution of Heatwaves to the Emissions of Carbon Majors”
Research connecting emissions associated with major fossil-fuel and cement producers to changes in the probability and intensity of historical heat waves.
Vermont flooding and hydrology
- U.S. Geological Survey: July 2023 Flood in Vermont
An accessible federal overview of the rainfall totals, river levels, flooding, and damage. - USGS Scientific Investigations Report: Flood of July 2023 in Vermont
The full technical analysis of streamflow, high-water marks, flood frequency, and the hydrological characteristics of the event.
Insurance and Superfund background
- FEMA: Flood Insurance
Federal guidance explaining that most homeowners insurance does not cover flooding and that flood insurance is generally purchased separately. - National Association of Insurance Commissioners: Flood Insurance
Consumer-oriented information about standard homeowners exclusions, flood policies, and the National Flood Insurance Program. - EPA: Superfund Liability
An explanation of CERCLA liability, including its retroactive features and treatment of responsible parties. - EPA: Defenses and Exemptions from Superfund Liability
Federal guidance describing CERCLA’s narrow defenses, including the act-of-God defense.
Broader legal and policy analysis
- Georgetown Environmental Law Review: The Pending Fate of Climate Superfund Statutes
A legal overview of the Vermont and New York statutes and the constitutional litigation surrounding them. - New York Governor: Creation of New York’s Climate Superfund
Official information on the second state climate-superfund program, signed in December 2024. - U.S. Courts: About the Courts of Appeals
Background on federal appellate jurisdiction and why circuit-court decisions have greater binding precedential reach than individual district-court rulings.
This article discusses ongoing litigation for educational purposes and does not provide legal advice.
