As many expected, New York’s Climate Change Superfund Act is likely heading to court.

A lawsuit by 22 Republican attorneys general, backed by coal oil and gas companies, was filed this week with West Virginia taking the lead.

“They’ve said the effects of what the coal and gas industry has done to make America great, to make the steel that built every skyscraper in New York, is now not good enough for them,” said West Virginia Attorney General John McCuskey.

They say the legislation, which charges big oil and gas companies $3 billion per year for 25 years to go toward climate-related damages tied to the burning of fossil fuels, is unconstitutional. They argue New York can't fine companies for legally extracting fossil fuels, especially when done outside of the state.

“We’re not going to allow states like New York to usurp the federal government who has the sole authority to regulate the emissions that are being targeted in the superfund bill,” McCuskey said.

The law’s supporters have argued that there is precedent for “making polluters pay” in both the federal superfund launched in 1980 and smaller initiatives like General Electric’s forced cleanup of the Hudson River in the early 2000’s.

State Sen. Liz Krueger, the law’s lead legislative architect, told Spectrum News 1 in an interview that she was fully prepared for the law to face lawsuits, and it was designed to avoid legal challenges based around arguments related to the federal Clean Air Act.

“We spoke with many attorneys with expertise on these issues during the drafting and moving of the legislation who were confident that this type of argument would not hold water in court,” she said.

The lawsuit claims that because New York is charging companies for activity that went beyond the state’s borders, it is therefore forcing economic hardship on workers outside of New York state and if paired with similar laws in other states could cause those companies to shut their doors.

Krueger called that justification “a somewhat funky argument” and mocked the idea that the law as written in New York would impact the bottom line for the companies targeted.

“It’s almost equivalent to the extra change they find in their couch cushions given how much revenue they are producing every year at the cost of our climate,” she said.

Blair Horner, senior policy advisor for NYPIRG, also worked on the bill. He and Krueger both expressed a degree of surprise that 22 attorneys general were involved, and Horner accused oil and gas companies of using the states as cover.

“In a sense, those elected officials are putting the interests of the fossil fuel industry ahead of their constituents because they are going to end up paying more taxes unless the oil and gas companies are picking up part of the tab for the climate damages,” he said. "It really boils down to a simple calculation, who pays for climate damages? Should it be 100 percent taxpayers, or should it be something less than that, the difference being made up, basically by the oil industry." 

New York’s law is one of the first in the nation and has been hailed by many climate activists as setting the standard. McCuskey stressed that the lawsuit is about more than just expenses coming from this specific case, with a similar law in Vermont also headed to court.

“If we don’t stop New York, we’ll be having this exact same question from Illinois, this exact same question from California, this exact same question from Vermont,” he said.

The law has its oposition within New York state particularly among Republicans in the legislature. Advocacy Coalition Upstate United also echoed some sentiments from the lawsuit.

"We have said all along that The Act is arbitrary in who it targets and won’t hold the world’s largest producers, like China, accountable. While there are serious questions about whether New York has the legal right to place tariffs on out-of-state producers, there is also the commonsense question of whether New York should penalize traditional energy companies for supplying resources that everyday New Yorkers depend on," said Executive Director Justin Wilcox. "The irony should not be lost on anyone, as New York is purchasing fossil fuels for snowplows and to heat state buildings at this very moment."

Gov. Kathy Hochul’s office has said they are prepared to defend the law in court, and that will fall to Attorney General Letitia James and her team who are named as defendants.