NY State Senate Bill 2023-S212A

Senate Bill S212A

2023-2024 Legislative Session

Creates climate liability for fossil fuel related activity which caused or contributed to climate change

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Current Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2024	print number 212a
Jan 04, 2024	amend (t) and recommit to consumer protection
Jan 03, 2024	referred to consumer protection
Jan 04, 2023	referred to consumer protection

Bill Amendments

Original

A (Active)

co-Sponsors

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2023-S212 - Details

See Assembly Version of this Bill:: A4056
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add Art 20-B §§328 - 328-c, Gen Bus L
Versions Introduced in 2021-2022 Legislative Session:: S9612

2023-S212 - Summary

Creates climate liability for fossil fuel related activity which caused or contributed to climate change; creates a right of action.

2023-S212 - Sponsor Memo

                                 
BILL NUMBER: S212                      Revised 4/13/23

SPONSOR: MYRIE
 
TITLE OF BILL:

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

 
PURPOSE:

To create climate negligence for dangers to safety and health caused by
certain fossil fuel-related activities.

 
SUMMARY OF PROVISIONS:

Section 1 contains legislative findings and intent.

Section 2 amends the general business law, adding a new article 20-B.

Article 20-B:

§ 328 defines several terms that appear in the bill including "fossil
fuel industry member", "qualified product", "reasonable controls and
procedures", "knowingly", "recklessly", "deceptive acts or practices",
and "false advertising".

§ 328-a provides that no fossil fuel industry member, as that term is
defined in the bill, shall knowingly or recklessly create or contribute
to a condition that endangers the safety or health of the public by
extracting, storing, transporting, refining, importing, reporting,
producing, manufacturing, distributing, compounding, marketing, or sale
of a "qualified product".

328-b declares that a violation of the new article that results in any
harm shall be deemed climate negligence regardless of when the underly-
ing conduct occurred.

328-c prohibits governmental enforcement.

328-d provides that 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 entitled to bring an
action for recovery of damages.

Section 3 provides the severability clause.

Section 4 provides the effective date.

 
JUSTIFICATION:

Since 1751, only 90 entities have made up 63 percent of the carbon diox-
ide and methane emitted into the Earth's atmosphere. All 90 entities are
greenhouse gas industry members or producers. Today, the world collec-
tively emits around 50 billion tons of CO2e each year 40% higher than
emissions in 1990. This negligence poses specific harm to all New York-
ers, especially those in black and brown communities.Individuals who
live in historically underserved neighborhoods are 34 percent more like-

ly to experience childhood asthma, and 40 percent more likely to die
from extreme temperatures.

Fossil fuel industry members have known for decades that their products
overwhelmingly contributed to and accelerated climate change, yet they
have and continue to lie about this fact to the public. In 1977, a
scientist for a fossil fuel industry member detailed to the company's
top executives that fossil fuel usage was releasing enough carbon diox-
ide to change the planet's climate. Two years later, an internal memo
noted that the increasing concentration of carbon dioxide in the atmos-
phere would, "bring about dramatic changes in the world's environment".

Despite this early revelation and recognition, since 1988, several
members of the fossil fuel industry have maintained an extensive
campaign of misinformation and climate denial. Instead of transparency,
fossil fuel industry members have used their profits to deceive the
public in order to continue the production of fossil fuels. There is no
credible debate on the effects of climate change. The oil and gas indus-
try, having finally ceded this fact, has fought accountability in the
courts in a myriad of ways, including keeping actions out of state
court, or claiming that their decades of deception to the public on the
true impact of their products was "political speech" meant to influence
government decisions. This bill aims to hold them accountable on both
fronts.

 
LEGISLATIVE HISTORY:

None.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S212 - Bill Text download pdf

                             
                     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.

co-Sponsors

View additional co-sponsors

2023-S212A (ACTIVE) - Details

See Assembly Version of this Bill:: A4056
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add Art 20-B §§328 - 328-c, Gen Bus L
Versions Introduced in 2021-2022 Legislative Session:: S9612

2023-S212A (ACTIVE) - Summary

Creates climate liability for fossil fuel related activity which caused or contributed to climate change; creates a right of action.

2023-S212A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S212A

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the general business law, in relation to creating
climate liability for dangers to safety and health caused by certain
fossil fuel related activities

 
PURPOSE:

To create climate liability for dangers to safety and health caused by
certain fossil fuel-related activity.

 
SUMMARY OF PROVISION:

Section 1 contains the legislative findings and intent.

Section 2 amends the general business law, adding a new article, "20-B",
consisting of four subsections, listed as follows:

§ 328 defines several terms that appear in the bill including, "covered

period", "fossil fuel industry member", "qualified product", "reasonable
controls and procedures", "deceptive acts or practices", and "false
advertising".

§ 328-a determines the criteria in which a fossil fuel industry member
is liable for damages as per the article.

§ 328-b outlines the possible defenses for liability that can be under-
taken by fossil fuel industry members but highlights that liability is
identified holistically to the extent of the action and the period that
it persisted.

§ 328-c establishes a right of action.

Section 3 provides a severability clause.

Section 4 provides the effective date.

 
JUSTIFICATION:

Since 1751, only 90 entities have made up 63 percent of the carbon diox-
ide and methane emitted into the Earth's atmosphere. All 90 entities are
greenhouse gas industry members or producers. Today, the world collec-
tively emits around 50 billion tons of CO2e each year 40% higher than
emissions in 1990. This negligence poses specific harm to all New York-
ers, especially those in black and brown communities.  Individuals who
live in historically underserved neighborhoods are 34 percent more like-
ly to experience childhood asthma, and 40 percent more likely to die
from extreme temperatures.

Fossil fuel industry members have known for decades that their products
overwhelmingly contributed to and accelerated climate change, yet they
have and continue to lie about this fact to the public. In 1977, a
scientist for a fossil fuel industry member detailed to the company's
top executives that fossil fuel usage was releasing enough carbon diox-
ide to change the planet's climate. Two years later, an internal memo

noted that the increasing concentration of carbon dioxide in the atmos-
phere would, "bring about dramatic changes in the world's environment".

Despite this early revelation and recognition, since 1988, several
members of the fossil fuel industry have maintained an extensive
campaign of misinformation and climate denial. Instead of transparency,
fossil fuel industry members have used their profits to deceive the
public to continue the production of fossil fuels.

There is no credible debate on the effects of climate change. The oil
and gas industry, having finally ceded this fact, has fought account-
ability in the courts in a myriad of ways, including keeping actions out
of state court, or claiming that their decades of deception to the
public on the tile impact of their products was "political speech" meant
to influence government decisions. This bill aims to hold them account-
able on both fronts.

 
LEGISLATIVE HISTORY:

None.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S212A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  212--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by  Sens. MYRIE, BAILEY, CLEARE, FERNANDEZ, GIANARIS, GONZA-
   LEZ, GOUNARDES, HOYLMAN-SIGAL, SALAZAR, SEPULVEDA, WEBB -- read  twice
   and ordered printed, and when printed to be committed to the Committee
   on  Consumer  Protection  --  recommitted to the Committee on Consumer
   Protection in accordance with Senate  Rule  6,  sec.  8  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the  general  business  law, in relation to creating
   climate liability 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-

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01983-02-4
 S. 212--A                           2
 
 ures." Although the plan is not  authoritative  on  the  full  scope  of
 damage,  the cost of not taking immediate and aggressive action, accord-
 ing 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-
 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 also finds that there has been a scientific consensus
 for several decades that climate change is occurring exemplified by  the
 testimony  of  Dr.  James  Hansen  of the National Aeronautics and Space
 Administration in June 1988 to the U.S. Senate and the  formation  later
 that  year  of  the  United  Nations  Intergovernmental Panel on Climate
 Change.
   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,
 S. 212--A                           3
 
 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
 SECTION 328.   DEFINITIONS.
         328-A. FOSSIL FUEL INDUSTRY MEMBER CLIMATE LIABILITY.
         328-B. DEFENSE TO LIABILITY.
         328-C. RIGHT OF ACTION.
   § 328. DEFINITIONS. FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING  TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1. "COVERED PERIOD" SHALL MEAN THE PERIOD FROM JANUARY FIRST, NINETEEN
 EIGHTY-NINE TO THE EFFECTIVE DATE OF THIS ARTICLE.
   2.  "FOSSIL  FUEL  INDUSTRY  MEMBER"  SHALL  MEAN A FIRM, CORPORATION,
 COMPANY, PARTNERSHIP, SOCIETY, JOINT STOCK COMPANY OR ANY  OTHER  ENTITY
 OR ASSOCIATION THAT EMITTED OR CAUSED TO BE EMITTED THROUGH THE EXTRACT-
 ING,  STORING,  TRANSPORTING, REFINING, IMPORTING, EXPORTING, PRODUCING,
 MANUFACTURING, DISTRIBUTING, COMPOUNDING,  MARKETING,  OR  OFFERING  FOR
 WHOLESALE  OR RETAIL SALE, A QUALIFIED PRODUCT WITH TOTAL GREENHOUSE GAS
 EMISSIONS OF AT LEAST ONE BILLION METRIC TONS OF CARBON  DIOXIDE  EQUIV-
 ALENT  DURING THE COVERED PERIOD. IT SHALL NOT INCLUDE ANY PUBLIC UTILI-
 TY, PUBLIC AUTHORITY, OR THE STATE OF NEW YORK OR ITS POLITICAL SUBDIVI-
 SIONS.
   3. "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.
   4.  "REASONABLE  CONTROLS  AND  PROCEDURES"  SHALL  MEAN POLICIES THAT
 INCLUDE, BUT ARE NOT LIMITED TO: (A) INSTITUTING BUSINESS  PRACTICES  TO
 PREVENT  POLLUTION,  INCLUDING  BUT NOT LIMITED TO THE RELEASE OF GREEN-
 HOUSE GASES WHICH CONTRIBUTE  TO  CLIMATE  CHANGE  AND  EMISSIONS  WHICH
 CONTRIBUTE  TO ADVERSE HEALTH IMPACTS; AND (B) PREVENTING DECEPTIVE ACTS
 S. 212--A                           4
 
 AND PRACTICES AND FALSE ADVERTISING AND  OTHERWISE  ENSURING  COMPLIANCE
 WITH  ALL  PROVISIONS  OF  ARTICLE TWENTY-TWO-A OF THIS CHAPTER. ACTS OR
 PRACTICES RELATED TO ENVIRONMENTAL COMMITMENT, PERFORMANCE, OR SUSTAINA-
 BILITY  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 SUSTAINABILITY.  THIS
 SUBDIVISION  MAY  NOT  BE CONSTRUED TO IMPOSE LIABILITY ON ANY SPEECH OR
 CONDUCT PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES  CONSTITU-
 TION, AS MADE APPLICABLE TO THE STATES THROUGH THE UNITED STATES SUPREME
 COURT'S  INTERPRETATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES
 CONSTITUTION.
   5. "DECEPTIVE ACTS OR PRACTICES" SHALL MEAN THOSE ACTS  AND  PRACTICES
 WHICH ARE UNLAWFUL PURSUANT TO ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
   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 CLIMATE LIABILITY. ANY FOSSIL
 FUEL INDUSTRY MEMBER WHOSE CONDUCT HAS CAUSED OR CONTRIBUTED TO  CLIMATE
 CHANGE  IN  NEW  YORK  STATE,  WHETHER  DIRECTLY OR INDIRECTLY, SHALL BE
 LIABLE FOR DAMAGES UNDER THIS ARTICLE.
   § 328-B. DEFENSE TO LIABILITY. ANY FOSSIL FUEL  INDUSTRY  MEMBER  THAT
 ESTABLISHES  AND IMPLEMENTS REASONABLE CONTROLS AND PROCEDURES MAY OFFER
 EVIDENCE OF THOSE CONTROLS AND PROCEDURES TO LIMIT THE LIABILITY IMPOSED
 UNDER SECTION THREE HUNDRED TWENTY-EIGHT-A OF  THIS  ARTICLE;  PROVIDED,
 HOWEVER,  SUCH  EVIDENCE  SHALL  NOT BE A COMPLETE DEFENSE TO LIABILITY.
 WHEN DETERMINING THE IMPACT OF SUCH CONTROLS AND PROCEDURES AS A DEFENSE
 TO LIABILITY, A COURT MAY CONSIDER THE DURATION THAT SUCH  CONTROLS  AND
 PROCEDURES  ARE  IN  PLACE IN RELATION TO THE DURATION OF THE CONDUCT IN
 VIOLATION OF SECTION THREE HUNDRED TWENTY-EIGHT-A OF THIS ARTICLE OR ANY
 OTHER MEANS OF MEASURING THE MITIGATING  EFFECTS  OF  ANY  CONTROLS  AND
 PROCEDURES RELATIVE TO THE COMPLETE IMPACT OF THE UNDERLYING CONDUCT.
   §  328-C. RIGHT OF ACTION. ANY PERSON, GOVERNMENT ENTITY, FIRM, CORPO-
 RATION OR ASSOCIATION THAT HAS BEEN DAMAGED AS A RESULT OF A FOSSIL FUEL
 INDUSTRY MEMBER'S CONDUCT AS DESCRIBED IN SECTION THREE HUNDRED  TWENTY-
 EIGHT-A  OF THIS ARTICLE SHALL BE ENTITLED TO BRING AN ACTION FOR RECOV-
 ERY OF DAMAGES 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 ANY PLAINTIFF IF THE PLAINTIFF 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.

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Senate Bill S212A

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Sponsored By

Current Bill Status - In Senate Committee Consumer Protection Committee

Bill Amendments

co-Sponsors

2023-S212 - Details

2023-S212 - Summary

2023-S212 - Sponsor Memo

2023-S212 - Bill Text download pdf

co-Sponsors

2023-S212A (ACTIVE) - Details

2023-S212A (ACTIVE) - Summary

2023-S212A (ACTIVE) - Sponsor Memo

2023-S212A (ACTIVE) - Bill Text download pdf

Comments