S T A T E O F N E W Y O R K
________________________________________________________________________
212
2023-2024 Regular Sessions
I N S E N A T E
(PREFILED)
January 4, 2023
___________
Introduced by Sen. MYRIE -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to creating
climate negligence for dangers to safety and health caused by certain
fossil fuel related activities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The legislature finds that the consequences of a changing
climate directly impact New York state. Around the world thousands of
scientific studies have documented changes in air and water temper-
atures, melting glaciers, diminishing snow cover, shrinking sea ice,
rising sea levels, ocean acidification, and increasing atmospheric water
vapor. Warming trends and incidences of intense heat waves will
contribute to greater localized heat stresses; heavy rainfall events
that exacerbate localized flooding will continue to impact food
production, natural ecosystems, and water resources; and sea-level rise
will increasingly threaten sensitive coastal communities and ecosystems.
Climate change is adversely affecting New York's economic well-being,
public health, natural resources, and environment.
To achieve the goals of the Climate Leadership and Community
Protection Act (hereinafter the "Climate Act") that include 70% renewa-
ble electricity by 2030, 100% zero-emission electricity by 2040, a 40%
reduction in statewide GHG emissions from 1990 levels by 2030, an 85%
reduction in statewide GHG emissions from 1990 levels by 2050, and net
zero emissions statewide by 2050, the New York State Climate Action
Council (the "Council") determined in its Scoping Plan for the Climate
Act that "[i]t is imperative that New York take immediate action to
aggressively reduce GHG emissions as well as invest in resiliency meas-
ures." The cost of not taking immediate and aggressive action, according
to the Council, is approximately $115 billion dollars.
The public health impacts of GHG and co-pollutant emissions are simi-
larly devastating. Increased heat stress (such as heat edema, heat
stroke, heat cramps, heat stress, and dehydration) and other heat-relat-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01983-01-3
S. 212 2
ed morbidity and mortality; exacerbation of respiratory conditions
(including pneumonia, asthma, and chronic obstructive pulmonary disease)
and cardiovascular disease; increased duration and severity of allergy
symptoms due to increased duration and intensity of pollen season;
increased risk for vector-borne diseases (such as Lyme disease, West
Nile virus, and other pathogens); increased risk of injury and death
following extreme precipitation events and flooding (or, conversely,
after droughts); rising sea levels that threaten infrastructure; the
saltwater intrusion of the State's groundwater resources (which may
impact drinking water supplies); and poor indoor air quality (such as
mold and moisture) are just some of those impacts. Additionally,
climate-driven impacts are magnified in New York's historically margi-
nalized communities that have been disproportionately affected by and
are on the front lines of climate change.
The legislature finds that the New York Constitution grants every New
Yorker the right to mitigate these impacts. Article I, Section 19 of
the New York State Constitution reads: "Each person shall have a right
to clean air and water, and a healthful environment." Overwhelmingly
approved by the voters in 2021, this "green amendment" to our constitu-
tion placed a right to a healthful environment alongside the freedom of
speech, religion, and property in our Bill of Rights. As such, every
New Yorker should have the tools to best utilize that right. This bill
seeks to provide them with at least one tool.
The legislature further finds that the fossil fuel industry has known
for decades that their products overwhelmingly contributed to and accel-
erated climate change, yet they have - and continue to - lie about this
fact to the public. Documents unveiled by litigation and investigative
journalists demonstrate that as early as the 1950s, the industry became
aware of the potentially catastrophic impact of its products and even in
the face of scientific consensus shortly thereafter and research
conducted by their own scientists affirming the impacts of their busi-
ness, the industry outright denied that climate change was real, spread
disinformation to cast doubt on the science, dismissed regulatory action
as insufficient (after no longer being able to deny climate change
outright), and currently advertise "green" efforts to the public that
mask the industry's lack of real investment in resiliency and energy-
source transition. A December 2022 report by the Oversight Committee in
Congress also revealed internal documents from senior leaders in the
industry where, among other things, they explicitly reject taking
accountability for the emissions of their products.
By conduct and impact, the industry has intentionally obfuscated the
truth about climate change and outright deceived the public in order to
continue dependence on their products. The legislature finds that this
conduct and the subsequent impact on the public is not political speech,
but fundamentally commercial activity with incidental political impact.
We also find this conduct to be a substantial factor in affecting the
public's perception of the threat of climate change, scientific consen-
sus notwithstanding.
New Yorkers should have the ability to hold those responsible for
climate change accountable for their deceptive practices and the cata-
clysmic impacts these practices have yielded. This bill seeks to provide
them with that opportunity.
§ 2. The general business law is amended by adding a new article 20-B
to read as follows:
ARTICLE 20-B
FOSSIL FUEL RELATED ACTIVITIES
S. 212 3
SECTION 328. DEFINITIONS.
328-A. FOSSIL FUEL INDUSTRY MEMBER OBLIGATIONS.
328-B. CLIMATE NEGLIGENCE.
328-C. GOVERNMENTAL ENFORCEMENT PROHIBITED.
328-D. PRIVATE RIGHT OF ACTION.
§ 328. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
1. "FOSSIL FUEL INDUSTRY MEMBER" SHALL MEAN A PERSON, FIRM, CORPO-
RATION, COMPANY, PARTNERSHIP, SOCIETY, JOINT STOCK COMPANY OR ANY OTHER
ENTITY OR ASSOCIATION WITH TOTAL ANNUAL REVENUES IN EXCESS OF ONE
BILLION DOLLARS ENGAGED IN EXTRACTING, STORING, TRANSPORTING, REFINING,
IMPORTING, EXPORTING, PRODUCING, MANUFACTURING, DISTRIBUTING, COMPOUND-
ING, MARKETING, OR OFFERING FOR WHOLESALE OR RETAIL SALE, A QUALIFIED
PRODUCT.
2. "QUALIFIED PRODUCT" SHALL MEAN A FOSSIL FUEL PRODUCT INCLUDING, BUT
NOT LIMITED TO:
(A) CRUDE PETROLEUM OIL AND ALL OTHER HYDROCARBONS, REGARDLESS OF
GRAVITY, THAT ARE PRODUCED AT THE WELLHEAD IN LIQUID FORM BY ORDINARY
PRODUCTION METHODS.
(B) NATURAL, MANUFACTURED, MIXED, AND BYPRODUCT HYDROCARBON GAS.
(C) REFINED CRUDE OIL, CRUDE TOPS, TOPPED CRUDE, PROCESSED CRUDE,
PROCESSED CRUDE PETROLEUM, RESIDUE FROM CRUDE PETROLEUM, CRACKING STOCK,
UNCRACKED FUEL OIL, FUEL OIL, TREATED CRUDE OIL, RESIDUUM, GAS OIL,
CASINGHEAD GASOLINE, NATURAL-GAS GASOLINE, KEROSENE, BENZINE, WASH OIL,
WASTE OIL, BLENDED GASOLINE, LUBRICATING OIL, AND BLENDS OR MIXTURES OF
OIL WITH ONE OR MORE LIQUID PRODUCTS OR BYPRODUCTS DERIVED FROM OIL OR
GAS.
(D) ANY PHYSICAL WASTE GENERATED IN THE EXTRACTING, STORING, TRANS-
PORTING, REFINING, IMPORTING, PRODUCING, MANUFACTURING, DISTRIBUTING, OR
COMPOUNDING A QUALIFIED PRODUCT DEFINED IN PARAGRAPHS (A), (B), AND/OR
(C) OF THIS SUBDIVISION WHICH CONTAINS OR IS CONTAMINATED BY ANY QUALI-
FIED PRODUCT DEFINED IN PARAGRAPHS (A), (B), AND/OR (C) OF THIS SUBDIVI-
SION OR ANY SUBSTANCE APPEARING ON A LIST WITHIN REGULATIONS PROMULGATED
BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION PURSUANT TO SECTION
37-0101 OF THE ENVIRONMENTAL CONSERVATION LAW.
3. "REASONABLE CONTROLS AND PROCEDURES" SHALL MEAN POLICIES THAT
INCLUDE, BUT ARE NOT LIMITED TO: (A) INSTITUTING BUSINESS PRACTICES TO
PREVENT POLLUTION IN NEW YORK STATE, INCLUDING BUT NOT LIMITED TO THE
RELEASE OF GREENHOUSE GASES WHICH CONTRIBUTE TO CLIMATE CHANGE AND EMIS-
SIONS WHICH CONTRIBUTE TO ADVERSE HEALTH IMPACTS; AND (B) PREVENTING
DECEPTIVE ACTS AND PRACTICES AND FALSE ADVERTISING AND OTHERWISE ENSUR-
ING COMPLIANCE WITH ALL PROVISIONS OF ARTICLE TWENTY-TWO-A OF THIS CHAP-
TER. ACTS OR PRACTICES RELATED TO ENVIRONMENTAL COMMITMENT, PERFORMANCE,
OR SUSTAINABILITY SHALL ALSO BE SUBJECT TO THIS SUBDIVISION AND SHALL BE
CLEAR, OBJECTIVE, AND VERIFIABLE. THE NET IMPRESSION OF SUCH ACTS AND
PRACTICES SHALL NOT MISLEAD A REASONABLE PERSON ABOUT THE FOSSIL FUEL
INDUSTRY MEMBER'S ENVIRONMENTAL COMMITMENT, PERFORMANCE, OR SUSTAINABIL-
ITY. THIS SUBDIVISION MAY NOT BE CONSTRUED TO IMPOSE LIABILITY ON ANY
SPEECH OR CONDUCT PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES
CONSTITUTION, AS MADE APPLICABLE TO THE STATES THROUGH THE UNITED STATES
SUPREME COURT'S INTERPRETATION OF THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION.
4. THE TERMS "KNOWINGLY" AND "RECKLESSLY" SHALL HAVE THE SAME MEANING
AS DEFINED IN SECTION 15.05 OF THE PENAL LAW.
5. "DECEPTIVE ACTS OR PRACTICES" SHALL MEAN THOSE ACTS AND PRACTICES
WHICH ARE UNLAWFUL PURSUANT TO ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
S. 212 4
6. "FALSE ADVERTISING" SHALL HAVE THE SAME MEANING AS DEFINED IN ARTI-
CLE TWENTY-TWO-A OF THIS CHAPTER.
§ 328-A. FOSSIL FUEL INDUSTRY MEMBER OBLIGATIONS. 1. NO FOSSIL FUEL
INDUSTRY MEMBER SHALL KNOWINGLY OR RECKLESSLY CREATE, MAINTAIN OR
CONTRIBUTE TO A CONDITION IN NEW YORK STATE THAT ENDANGERS THE SAFETY OR
HEALTH OF THE PUBLIC, WHETHER DIRECTLY OR INDIRECTLY, THROUGH EXTRACT-
ING, STORING, TRANSPORTING, REFINING, IMPORTING, EXPORTING, PRODUCING,
MANUFACTURING, DISTRIBUTING, COMPOUNDING, MARKETING, OR OFFERING FOR
WHOLESALE OR RETAIL SALE, A QUALIFIED PRODUCT.
2. EACH FOSSIL FUEL INDUSTRY MEMBER IN NEW YORK STATE SHALL ESTABLISH
AND UTILIZE REASONABLE CONTROLS AND PROCEDURES TO PREVENT ITS QUALIFIED
PRODUCTS FROM CREATING, MAINTAINING OR CONTRIBUTING, WHETHER DIRECTLY OR
INDIRECTLY, TO A CONDITION IN NEW YORK STATE THAT ENDANGERS THE SAFETY
OR HEALTH OF THE PUBLIC INCLUDING, BUT NOT LIMITED TO, CLIMATE CHANGE.
§ 328-B. CLIMATE NEGLIGENCE. 1. A VIOLATION OF SECTION THREE HUNDRED
TWENTY-EIGHT-A OF THIS ARTICLE IS HEREBY DECLARED TO BE A CLIMATE NEGLI-
GENCE.
2. ANY HARM CAUSED BY AN ACTION TAKEN BY A FOSSIL FUEL INDUSTRY MEMBER
SHALL BE DEEMED CLIMATE NEGLIGENCE REGARDLESS OF WHEN THE UNDERLYING
CONDUCT CREATING THE NUISANCE OCCURRED.
§ 328-C. GOVERNMENTAL ENFORCEMENT PROHIBITED. WHENEVER THERE SHALL BE
A VIOLATION OF THIS ARTICLE, NO PERSON OR ENTITY ACTING ON BEHALF OF THE
STATE OR ANY POLITICAL SUBDIVISION THEREOF MAY BRING, OR INTERVENE IN,
AN ACTION IN ANY COURT TO ENJOIN AND/OR RESTRAIN SUCH VIOLATION OR TO
OBTAIN RESTITUTION OR DAMAGES UNDER THIS ARTICLE. THIS SECTION SHALL NOT
PROHIBIT ANY PERSON OR ENTITY, INCLUDING A PERSON OR ENTITY ACTING ON
BEHALF OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF, FROM BRINGING
AN ACTION UNDER ANY OTHER PROVISION OF LAW NOR SHALL IT PROHIBIT ANY
PERSON OR ENTITY ACTING ON BEHALF OF THE STATE OR ANY POLITICAL SUBDIVI-
SION THEREOF FROM FILING AN AMICUS CURIAE BRIEF IN AN ACTION INVOLVING
AN ALLEGED VIOLATION OF THIS ARTICLE.
§ 328-D. PRIVATE RIGHT OF ACTION. EXCEPT AS DESCRIBED IN SECTION THREE
HUNDRED TWENTY-EIGHT-C OF THIS ARTICLE, ANY PERSON, FIRM, CORPORATION OR
ASSOCIATION THAT HAS BEEN DAMAGED AS A RESULT OF A FOSSIL FUEL INDUSTRY
MEMBER'S ACTS OR OMISSIONS IN VIOLATION OF THIS ARTICLE SHALL BE ENTI-
TLED TO BRING AN ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS ARTI-
CLE IN:
1. THE COUNTY IN WHICH ALL OR A SUBSTANTIAL PART OF THE EVENTS OR
OMISSIONS GIVING RISE TO THE CLAIM OCCURRED;
2. THE COUNTY OF RESIDENCE FOR ANY ONE OF THE NATURAL PERSON DEFEND-
ANTS AT THE TIME THE CAUSE OF ACTION ACCRUED;
3. THE COUNTY OF THE PRINCIPAL OFFICE IN THIS STATE OF ANY ONE OF THE
DEFENDANTS THAT IS NOT A NATURAL PERSON; OR
4. THE COUNTY OF RESIDENCE FOR THE CLAIMANT IF THE CLAIMANT IS A
NATURAL PERSON RESIDING IN THIS STATE.
§ 3. Severability. If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered. It is hereby declared to be the intent of the legislature
that this act would have been enacted even if such invalid provisions
had not been included herein.
§ 4. This act shall take effect immediately.