West Virginia Attorney General John McCuskey, joined by 21 other states, sued New York Thursday over a new law requiring fossil fuel companies to contribute some $75 billion to a fund to pay for damages caused by climate change.

McCuskey stated that Congress has the power to regulate interstate commerce through the Commerce Clause, and some matters are better regulated by a uniform approach, rather than left to the states. McCluskey added that that Congress has already regulated fossil fuels and greenhouse gas emissions through the Clean Air Act, which gives the Environmental Protection Agency this power. The lawsuit charges that by targeting only out-of-state fossil fuel companies, the law is a violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

McCuskey alleged that New York consumers will not bear the brunt of the regulations, as most of their electricity comes from gas, and their last coal plant closed in 2020 — a stark contrast to West Virginia and other similar energy-producing states in the US. The state of New York has yet to reply to this brief.

The lawsuit also argues that the retroactive penalty is unfair because the energy producers lawfully extracted and refined fossil fuels, violating the due process clause of the Fourteenth Amendment that prohibits “arbitrary actions of government.” The lawsuit further claimed that the harsh penalty amounts to excessive fines and restrictions on land uses, violating the Eighth Amendment and the Fifth Amendment respectively.

New York’s Climate Change Superfund Act “imposes retroactive fines on traditional energy producers for their purported past contributions to greenhouse gas emissions.” The retroactive fines will account for the years 2000 to 2018.  The goal of the Act is to “secure compensatory payments from responsible parties based on a standard of strict liability to provide a source of revenue for climate change adaptive infrastructure projects within the state.”

The Act defines a climate change adaptive infrastructure project as a project that “avoid(s) or prepare(s) for climate change. Such projects include: “restoring wetlands, upgrading storm or water drainage systems, upgrading bridges, roads, subways and other transit systems.” Other programming includes recovering from severe weather events and establishing medical programs to assist survivors of climate change events.

In December 2024, New York Governor Kathy Hochul signed the bill, claiming that the bill is necessary to hold polluters accountable for environmental harm.

The leading plaintiff, West Virginia, is one of the leading producers of gas in the United States.