The following is a testimony from Harvard Law Professor Nikolas Bowie to the Massachusetts Joint Committee on Environment and Natural Resources in connection with its consideration of H.1014/S.588, “An Act establishing a climate change superfund”. Professor Bowie explains why the retroactive aspect of the Climate Superfund is unlikely to violate any limits set by the Massachusetts Constitution.

September 15, 2025

Dear Chair Barber and Members of the Joint Committee:

I am a lawyer (J.D. Harvard Law School, 2014) and historian (Ph.D. Harvard University, 2018) who teaches courses in federal constitutional law, state constitutional law, and state and local government law at Harvard Law School. More information on my professional and publication history is available at the Law School’s website.

This testimony focuses on the question whether the retroactive aspect of H.1014/S.588 would violate any limits set by the Massachusetts Constitution. In short, I believe it does not, for the reasons outlined below [1].

First, the bill would not come close to transgressing the primary constitutional concern of retroactive legislation, which is the imposition of criminal liability or other punishment for prior acts. The bill imposes new financial consequences for prior acts, but they are not “punitive” as that concept has been defined under applicable Massachusetts and federal precedents.

Second, the financial obligation potentially imposed on a “responsible party” would not, in my opinion, qualify as an unconstitutional taking without compensation. The Supreme Judicial Court has followed the U.S. Supreme Court in its analysis of takings, and neither Court has described a financial obligation as a “per se taking” outside the context of land-use questions. If a Massachusetts court analyzed the bill through the lens of a “regulatory taking,” the analysis and result under applicable Massachusetts and federal precedents would be similar to that described below in connection with due process rights.

Third, the bill should survive a challenge that, on its face, its retroactive nature unconstitutionally deprives anyone of life, liberty, or property without due process of law. Under applicable Massachusetts and federal precedents, evaluating the fairness of a retroactive obligation requires balancing fact-intensive considerations that include the nature and scope of the retroactive impact. But I understand that the facts of any financial impact on any particular “responsible party” will not be known until after the designated executive branch agency completes a number of fact-finding steps and related calculations as directed by the bill. Therefore, a judicial challenge would not be ripe until the financial demand on a particular responsible party has been calculated and issued by the designated executive branch agency. The same would be true if the challenge was based on a “regulatory taking” analysis.

Fourth, I do not expect that, when such financial demands are issued, they would be held unconstitutional on either a “regulatory taking” or fairness theory.

• As a general matter, legislation with retroactive impact is routinely enacted, consistent with constitutional requirements. A challenger faces a high hurdle to prove that retroactive impact (so long as it is not punitive) is unconstitutional.
• This bill in particular takes care to incorporate principles of proportionality that a state or federal court would consider important for applying the relevant review criteria.
• Those criteria do not necessarily require that the parties impacted were either already in a heavily regulated industry or otherwise on notice of the potential for such future legislation. Therefore, the fact that bill limits its retroactive reach to a time period when there is ample evidence that large fossil fuel extraction companies were actually on notice simply adds more weight to the balance, in favor of the bill’s reasonableness.

I would be glad to respond to questions from the Joint Committee about this testimony.

Sincerely,

Nikolas Bowie
Louis D. Brandeis Professor of Law
Harvard Law School

References

1 – In connection with reaching these conclusions, I have reviewed a legal research memorandum prepared by attorney Paul Shorb, in both draft and final form, titled “Whether H.1014/S.588 Violates Any Limits on Retroactivity Set by the Massachusetts Constitution.” I agree with and endorse its conclusions.