The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2129
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 18, 2023
                                ___________
 
 Introduced by Sens. KRUEGER, HOYLMAN-SIGAL, MAY, RAMOS, RIVERA, STAVISKY
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Environmental Conservation
 
 AN  ACT  to  amend  the  environmental  conservation law, in relation to
   establishing the climate change adaptation cost recovery program;  and
   to  amend  the  state  finance  law,  in  relation to establishing the
   climate change adaptation fund
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This  act shall be known and may be cited as the "climate
 change superfund act".
   § 2. Legislative findings. The  legislature  finds  and  declares  the
 following:
   1.  Climate  change, resulting primarily from the combustion of fossil
 fuels, is an immediate, grave threat to the state's  communities,  envi-
 ronment,  and  economy. In addition to mitigating the further buildup of
 greenhouse gases, the state must take action to adapt to certain  conse-
 quences  of  climate  change that are irreversible, including rising sea
 levels, increasing temperatures, extreme weather events, flooding,  heat
 waves,  toxic  algal  blooms  and  other  climate-change-driven threats.
 Maintaining New York's quality of life into the future, particularly for
 young people, who will experience greater impacts  from  climate  change
 over  their  lifetimes,  will  be one of the state's greatest challenges
 over the next three decades.  Meeting  that  challenge  will  require  a
 shared  commitment  of  purpose  and huge investments in new or upgraded
 infrastructure.
   2. New York has previously adopted programs now in place -  the  inac-
 tive hazardous waste disposal site (state superfund) program and the oil
 spill fund - to remediate environmental damage to lands and waters based
 on  the  principle  that,  where  possible, the entities responsible for
 environmental damage should pay for  its  cleanup.  No  similar  program

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02710-03-3

 S. 2129                             2
 
 exists yet for the pollution of the atmosphere by greenhouse gas buildup
 as a result of burning fossil fuels.
   3.  Based  on decades of research it is now possible to determine with
 great accuracy the share of greenhouse gases released  into  the  atmos-
 phere  by specific fossil fuel companies over the last 70 years or more,
 making it possible to assign liability to and require compensation  from
 companies commensurate with their emissions during a given time period.
   4.  It  is the intent of the legislature to establish a climate change
 adaptation cost recovery program that will require companies  that  have
 contributed  significantly  to  the  buildup  of  climate change-driving
 greenhouse gases in the atmosphere to bear a proportionate share of  the
 cost  of  infrastructure investments required to adapt to the impacts of
 climate change in New York state.
   5. a. The obligation to pay under the program is based on  the  fossil
 fuel companies' historic contribution to the buildup of greenhouse gases
 that  is  largely  responsible  for climate change. The program operates
 under a standard of strict liability; companies are required to pay into
 the fund because the use of their  products  caused  the  pollution.  No
 finding of wrongdoing is required.
   b. Nonetheless, the legislature recognizes that the actions of many of
 the  biggest  fossil  fuel  companies  have been unconscionable, closely
 reflecting the strategy of denial, deflection, and  delay  used  by  the
 tobacco  industry.  In  spite  of  the information provided by their own
 scientists that  the  continued  burning  of  fossil  fuels  would  have
 catastrophic  results, these companies hid the truth from the public and
 actively spread false information that the science of climate change was
 uncertain when in fact it was beyond controversy.  This  breach  of  the
 public  trust  was  breathtaking  in  its scope and consequences, and it
 continues to this day.
   c. Since 2022, the fossil fuel industry has taken advantage of several
 overlapping global crises to earn immense profits, charging record  high
 prices  while aggressively rejecting any responsibility for the costs of
 its business activities. While all the profits accrue to the  companies,
 all  of  the  costs of climate change are paid by taxpayers and individ-
 uals. This is a market failure that needs to be addressed through policy
 change.
   6. Payments by historical polluters into the climate change adaptation
 cost recovery program would be used for new or  upgraded  infrastructure
 needs  such as coastal wetlands restoration, storm water drainage system
 upgrades, and energy efficient cooling systems  in  public  and  private
 buildings, including schools and public housing, all of which are neces-
 sary to protect the public safety and welfare in the face of the growing
 impacts  of climate change. At least 35%, with a goal of at least 40% of
 the overall benefits of program spending  would  go  to  climate  change
 adaptive  infrastructure  projects  that  directly benefit disadvantaged
 communities.
   7. This act is not intended to intrude on the authority of the federal
 government in areas where it has preempted the right of  the  states  to
 legislate.  This  act  is  remedial  in nature, seeking compensation for
 damages resulting from the past actions of polluters.
   § 3. The environmental conservation law is amended  by  adding  a  new
 article 76 to read as follows:
                                ARTICLE 76
              CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM
 SECTION 76-0101. DEFINITIONS.
         76-0103. THE CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM.
 S. 2129                             3
 
 § 76-0101. DEFINITIONS.
   FOR  THE  PURPOSES  OF THIS ARTICLE THE FOLLOWING TERMS SHALL HAVE THE
 FOLLOWING MEANINGS:
   1. "APPLICABLE PAYMENT DATE" MEANS SEPTEMBER THIRTIETH OF  THE  SECOND
 CALENDAR  YEAR  FOLLOWING THE YEAR IN WHICH THIS ARTICLE IS ENACTED INTO
 LAW.
   2. "CLIMATE CHANGE ADAPTIVE INFRASTRUCTURE PROJECT" MEANS  AN  INFRAS-
 TRUCTURE  PROJECT DESIGNED TO AVOID, MODERATE, REPAIR, OR ADAPT TO NEGA-
 TIVE IMPACTS CAUSED BY CLIMATE CHANGE, AND TO ASSIST COMMUNITIES, HOUSE-
 HOLDS, AND BUSINESSES IN  PREPARING  FOR  FUTURE  CLIMATE  CHANGE-DRIVEN
 DISRUPTIONS.  SUCH  PROJECTS  INCLUDE  BUT  ARE NOT LIMITED TO RESTORING
 COASTAL WETLANDS AND DEVELOPING OTHER NATURE-BASED SOLUTIONS AND COASTAL
 PROTECTIONS; UPGRADING STORM WATER DRAINAGE  SYSTEMS;  MAKING  DEFENSIVE
 UPGRADES  TO ROADS, BRIDGES, SUBWAYS, AND TRANSIT SYSTEMS; PREPARING FOR
 AND RECOVERING FROM HURRICANES AND OTHER EXTREME WEATHER EVENTS;  UNDER-
 TAKING  PREVENTIVE  HEALTH  CARE  PROGRAMS AND PROVIDING MEDICAL CARE TO
 TREAT ILLNESS OR INJURY CAUSED BY THE EFFECTS OF CLIMATE  CHANGE;  RELO-
 CATING, ELEVATING, OR RETROFITTING SEWAGE TREATMENT PLANTS VULNERABLE TO
 FLOODING; INSTALLING ENERGY EFFICIENT COOLING SYSTEMS AND OTHER WEATHER-
 IZATION  AND  ENERGY  EFFICIENCY  UPGRADES  AND  RETROFITS IN PUBLIC AND
 PRIVATE BUILDINGS, INCLUDING SCHOOLS AND PUBLIC HOUSING; UPGRADING PARTS
 OF THE ELECTRICAL GRID TO INCREASE STABILITY AND  RESILIENCE,  INCLUDING
 SUPPORTING  THE  CREATION  OF  SELF-SUFFICIENT  CLEAN ENERGY MICROGRIDS;
 ADDRESSING URBAN HEAT ISLAND EFFECTS THROUGH GREEN SPACES, URBAN  FORES-
 TRY, AND OTHER INTERVENTIONS; AND RESPONDING TO TOXIC ALGAE BLOOMS, LOSS
 OF  AGRICULTURAL  TOPSOIL, AND OTHER CLIMATE-DRIVEN ECOSYSTEM THREATS TO
 FORESTS, FARMS, FISHERIES, AND FOOD SYSTEMS.
   3. "COAL" SHALL HAVE THE SAME DEFINITION AS IN SECTION  1-103  OF  THE
 ENERGY LAW.
   4.  "CONTROLLED  GROUP" MEANS TWO OR MORE ENTITIES TREATED AS A SINGLE
 EMPLOYER UNDER SECTION 52(A) OR (B) OR SECTION  414(M)  OR  (O)  OF  THE
 INTERNAL  REVENUE  CODE.  IN APPLYING SUBSECTIONS (A) AND (B) OF SECTION
 52, SECTION 1563 OF THE INTERNAL REVENUE CODE SHALL BE  APPLIED  WITHOUT
 REGARD TO SUBSECTION(B)(2)(C). FOR PURPOSES OF THIS ARTICLE, ENTITIES IN
 A  CONTROLLED GROUP ARE TREATED AS A SINGLE ENTITY FOR PURPOSES OF MEET-
 ING THE DEFINITION OF RESPONSIBLE PARTY AND ARE  JOINTLY  AND  SEVERALLY
 LIABLE FOR PAYMENT OF ANY COST RECOVERY DEMAND OWED BY ANY ENTITY IN THE
 CONTROLLED GROUP.
   5.  "COST RECOVERY DEMAND" MEANS A CHARGE ASSERTED AGAINST A RESPONSI-
 BLE PARTY FOR COST RECOVERY PAYMENTS UNDER THE PROGRAM  FOR  PAYMENT  TO
 THE FUND.
   6. "COVERED GREENHOUSE GAS EMISSIONS" MEANS, WITH RESPECT TO ANY ENTI-
 TY,  THE TOTAL QUANTITY OF GREENHOUSE GASES RELEASED INTO THE ATMOSPHERE
 DURING THE COVERED PERIOD, EXPRESSED IN METRIC TONS  OF  CARBON  DIOXIDE
 EQUIVALENT, RESULTING FROM THE USE OF FOSSIL FUELS OR PETROLEUM PRODUCTS
 EXTRACTED, PRODUCED, REFINED, OR SOLD BY SUCH ENTITY.
   7.  "COVERED  PERIOD"  MEANS  THE PERIOD THAT BEGAN JANUARY FIRST, TWO
 THOUSAND AND ENDED ON DECEMBER THIRTY-FIRST, TWO THOUSAND EIGHTEEN.
   8. "CRUDE OIL" MEANS OIL OR PETROLEUM OF ANY KIND  AND  IN  ANY  FORM,
 INCLUDING BITUMEN, OIL SANDS, HEAVY OIL, CONVENTIONAL AND UNCONVENTIONAL
 OIL,  SHALE  OIL,  NATURAL  GAS LIQUIDS, CONDENSATES, AND RELATED FOSSIL
 FUELS.
   9. "ENTITY" MEANS ANY INDIVIDUAL, TRUSTEE, AGENT, PARTNERSHIP, ASSOCI-
 ATION, CORPORATION, COMPANY,  MUNICIPALITY,  POLITICAL  SUBDIVISION,  OR
 OTHER LEGAL ORGANIZATION, INCLUDING A FOREIGN NATION, THAT HOLDS OR HELD
 S. 2129                             4
 
 AN OWNERSHIP INTEREST IN A FOSSIL FUEL BUSINESS DURING THE COVERED PERI-
 OD.
   10.  "FOSSIL  FUEL" SHALL HAVE THE SAME DEFINITION AS IN SECTION 1-103
 OF THE ENERGY LAW.
   11. "FOSSIL FUEL BUSINESS" MEANS A BUSINESS ENGAGING IN THE EXTRACTION
 OF FOSSIL FUELS OR THE REFINING OF PETROLEUM PRODUCTS.
   12. "FUEL GASES" SHALL HAVE THE SAME DEFINITION AS IN SECTION 1-103 OF
 THE ENERGY LAW.
   13. "FUND" MEANS THE CLIMATE CHANGE ADAPTATION FUND ESTABLISHED PURSU-
 ANT TO SECTION NINETY-SEVEN-M OF THE STATE FINANCE LAW.
   14. "GREENHOUSE GAS" SHALL HAVE THE  SAME  DEFINITION  AS  IN  SECTION
 75-0101 OF THIS CHAPTER.
   15. "NATURE-BASED SOLUTIONS" SHALL MEAN PROJECTS THAT UTILIZE OR MIMIC
 NATURE  OR NATURAL PROCESSES AND FUNCTIONS AND THAT MAY ALSO OFFER ENVI-
 RONMENTAL, ECONOMIC, AND SOCIAL BENEFITS, WHILE  INCREASING  RESILIENCE.
 NATURE-BASED SOLUTIONS INCLUDE BOTH GREEN AND NATURAL INFRASTRUCTURE.
   16.  "NOTICE  OF COST RECOVERY DEMAND" MEANS THE WRITTEN COMMUNICATION
 INFORMING A RESPONSIBLE PARTY OF THE AMOUNT OF THE COST RECOVERY  DEMAND
 PAYABLE TO THE FUND.
   17.  "PETROLEUM PRODUCTS" SHALL HAVE THE SAME DEFINITION AS IN SECTION
 1-103 OF THE ENERGY LAW.
   18. "PROGRAM"  MEANS  THE  CLIMATE  CHANGE  ADAPTATION  COST  RECOVERY
 PROGRAM ESTABLISHED UNDER SECTION 76-0103 OF THIS ARTICLE.
   19. "QUALIFYING EXPENDITURE" MEANS AN AUTHORIZED PAYMENT FROM THE FUND
 IN  SUPPORT OF A CLIMATE CHANGE ADAPTIVE INFRASTRUCTURE PROJECT, INCLUD-
 ING ITS OPERATION AND MAINTENANCE, AS DEFINED BY THE DEPARTMENT.
   20. "RESPONSIBLE PARTY" MEANS ANY ENTITY (OR A SUCCESSOR  IN  INTEREST
 TO  SUCH ENTITY DESCRIBED HEREIN), WHICH, DURING ANY PART OF THE COVERED
 PERIOD, WAS ENGAGED IN THE TRADE OR BUSINESS OF EXTRACTING  FOSSIL  FUEL
 OR  REFINING CRUDE OIL AND IS DETERMINED BY THE DEPARTMENT TO BE RESPON-
 SIBLE FOR MORE THAN ONE BILLION TONS OF  COVERED  GREENHOUSE  GAS  EMIS-
 SIONS. THE TERM RESPONSIBLE PARTY SHALL NOT INCLUDE ANY PERSON WHO LACKS
 SUFFICIENT  CONNECTION  WITH THE STATE TO SATISFY THE NEXUS REQUIREMENTS
 OF THE UNITED STATES CONSTITUTION.
 § 76-0103. THE CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM.
   1. THERE IS HEREBY ESTABLISHED A CLIMATE CHANGE ADAPTATION COST RECOV-
 ERY PROGRAM ADMINISTERED BY THE DEPARTMENT.
   2. THE PURPOSES OF THE PROGRAM SHALL BE THE FOLLOWING:
   A. 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.
   B. TO DETERMINE PROPORTIONAL LIABILITY OF RESPONSIBLE PARTIES PURSUANT
 TO SUBDIVISION THREE OF THIS SECTION;
   C.  TO  IMPOSE  COST RECOVERY DEMANDS ON RESPONSIBLE PARTIES AND ISSUE
 NOTICES OF COST RECOVERY DEMANDS;
   D. TO ACCEPT AND COLLECT PAYMENT FROM RESPONSIBLE PARTIES;
   E. TO IDENTIFY CLIMATE CHANGE ADAPTIVE INFRASTRUCTURE PROJECTS;
   F.  TO  DISPERSE  FUNDS  TO  CLIMATE  CHANGE  ADAPTIVE  INFRASTRUCTURE
 PROJECTS; AND
   G.  TO ALLOCATE FUNDS IN SUCH A WAY AS TO ACHIEVE A GOAL THAT AT LEAST
 FORTY PERCENT OF THE QUALIFIED EXPENDITURES FROM THE  PROGRAM,  BUT  NOT
 LESS  THAN THIRTY-FIVE PERCENT OF SUCH EXPENDITURES, SHALL GO TO CLIMATE
 CHANGE  ADAPTIVE  INFRASTRUCTURE  PROJECTS  THAT  BENEFIT  DISADVANTAGED
 COMMUNITIES AS DEFINED IN SECTION 75-0101 OF THIS CHAPTER.
   3.  A. A RESPONSIBLE PARTY SHALL BE STRICTLY LIABLE, WITHOUT REGARD TO
 FAULT, FOR A SHARE OF THE COSTS OF CLIMATE CHANGE  ADAPTIVE  INFRASTRUC-
 S. 2129                             5
 
 TURE  PROJECTS,  INCLUDING THEIR OPERATION AND MAINTENANCE, SUPPORTED BY
 THE FUND.
   B.  WITH  RESPECT  TO EACH RESPONSIBLE PARTY, THE COST RECOVERY DEMAND
 SHALL BE EQUAL TO AN AMOUNT THAT BEARS THE SAME  RATIO  TO  SEVENTY-FIVE
 BILLION  DOLLARS  AS THE RESPONSIBLE PARTY'S APPLICABLE SHARE OF COVERED
 GREENHOUSE GAS EMISSIONS BEARS TO THE  AGGREGATE  APPLICABLE  SHARES  OF
 COVERED GREENHOUSE GAS EMISSIONS OF ALL RESPONSIBLE PARTIES.
   C. THE APPLICABLE SHARE OF COVERED GREENHOUSE GAS EMISSIONS TAKEN INTO
 ACCOUNT UNDER THIS SECTION FOR ANY RESPONSIBLE PARTY SHALL BE THE AMOUNT
 BY  WHICH  THE  COVERED  GREENHOUSE  GAS  EMISSIONS ATTRIBUTABLE TO SUCH
 RESPONSIBLE PARTY EXCEEDS ONE BILLION METRIC TONS.
   D. WHERE AN ENTITY OWNS A MINORITY INTEREST IN ANOTHER ENTITY  OF  TEN
 PERCENT  OR  MORE,  THE  CALCULATION OF THE ENTITY'S APPLICABLE SHARE OF
 GREENHOUSE GAS EMISSIONS TAKEN INTO ACCOUNT  UNDER  THIS  SECTION  SHALL
 INCLUDE  THE  APPLICABLE  SHARE  OF  GREENHOUSE GAS EMISSIONS TAKEN INTO
 ACCOUNT UNDER THIS SECTION BY THE ENTITY IN WHICH THE RESPONSIBLE  PARTY
 HOLDS  A MINORITY INTEREST, MULTIPLIED BY THE PERCENTAGE OF THE MINORITY
 INTEREST HELD.
   E. IN DETERMINING THE AMOUNT OF GREENHOUSE GAS EMISSIONS  ATTRIBUTABLE
 TO  ANY  ENTITY, AN AMOUNT EQUIVALENT TO NINE HUNDRED FORTY-TWO AND ONE-
 HALF METRIC TONS OF  CARBON  DIOXIDE  EQUIVALENT  SHALL  BE  TREATED  AS
 RELEASED  FOR  EVERY MILLION POUNDS OF COAL ATTRIBUTABLE TO SUCH ENTITY;
 AN AMOUNT EQUIVALENT TO FOUR HUNDRED  THIRTY-TWO  THOUSAND  ONE  HUNDRED
 EIGHTY  METRIC  TONS  OF  CARBON  DIOXIDE EQUIVALENT SHALL BE TREATED AS
 RELEASED FOR EVERY MILLION BARRELS OF CRUDE  OIL  ATTRIBUTABLE  TO  SUCH
 ENTITY;  AND  AN  AMOUNT EQUIVALENT TO FIFTY-THREE THOUSAND FOUR HUNDRED
 FORTY METRIC TONS OF CARBON  DIOXIDE  EQUIVALENT  SHALL  BE  TREATED  AS
 RELEASED FOR EVERY MILLION CUBIC FEET OF FUEL GASES ATTRIBUTABLE TO SUCH
 ENTITY.
   F.  THE  COMMISSIONER  MAY ADJUST THE COST RECOVERY DEMAND AMOUNT OF A
 RESPONSIBLE PARTY REFINING PETROLEUM PRODUCTS (OR WHO IS A SUCCESSOR  IN
 INTEREST TO SUCH AN ENTITY) IF SUCH RESPONSIBLE PARTY ESTABLISHES TO THE
 SATISFACTION  OF  THE  COMMISSIONER  THAT A PORTION OF THE COST RECOVERY
 DEMAND AMOUNT WAS ATTRIBUTABLE TO THE REFINING OF CRUDE OIL EXTRACTED BY
 ANOTHER RESPONSIBLE PARTY (OR WHO IS A SUCCESSOR IN INTEREST TO SUCH  AN
 ENTITY) THAT ACCOUNTED FOR SUCH CRUDE OIL IN DETERMINING ITS COST RECOV-
 ERY DEMAND AMOUNT.
   G.  PAYMENT  OF  A  COST  RECOVERY DEMAND SHALL BE MADE IN FULL ON THE
 APPLICABLE PAYMENT DATE UNLESS A RESPONSIBLE  PARTY  ELECTS  TO  PAY  IN
 INSTALLMENTS PURSUANT TO PARAGRAPH H OF THIS SUBDIVISION.
   H.  A  RESPONSIBLE  PARTY  MAY  ELECT  TO PAY THE COST RECOVERY DEMAND
 AMOUNT IN TWENTY-FOUR ANNUAL INSTALLMENTS, EIGHT PERCENT  OF  THE  TOTAL
 DUE  IN  THE FIRST INSTALLMENT AND FOUR PERCENT OF THE TOTAL DUE IN EACH
 OF THE FOLLOWING EIGHT INSTALLMENTS. IF AN ELECTION IS MADE  UNDER  THIS
 PARAGRAPH, THE FIRST INSTALLMENT SHALL BE PAID ON THE APPLICABLE PAYMENT
 DATE  AND  EACH SUBSEQUENT INSTALLMENT SHALL BE PAID ON THE SAME DATE AS
 THE APPLICABLE PAYMENT DATE IN EACH SUCCEEDING YEAR.
   I. IF THERE IS ANY ADDITION TO THE ORIGINAL AMOUNT OF THE COST  RECOV-
 ERY DEMAND FOR FAILURE TO TIMELY PAY ANY INSTALLMENT REQUIRED UNDER THIS
 SUBDIVISION,  A  LIQUIDATION  OR SALE OF SUBSTANTIALLY ALL THE ASSETS OF
 THE RESPONSIBLE PARTY (INCLUDING IN A PROCEEDING UNDER U.S. CODE:  TITLE
 11  OR  SIMILAR CASE), A CESSATION OF BUSINESS BY THE RESPONSIBLE PARTY,
 OR ANY SIMILAR CIRCUMSTANCE, THEN THE UNPAID BALANCE  OF  ALL  REMAINING
 INSTALLMENTS SHALL BE DUE ON THE DATE OF SUCH EVENT (OR IN THE CASE OF A
 PROCEEDING  UNDER U.S. CODE: TITLE 11 OR SIMILAR CASE, ON THE DAY BEFORE
 THE PETITION IS FILED). THE PRECEDING SENTENCE SHALL NOT  APPLY  TO  THE
 S. 2129                             6
 
 SALE  OF  SUBSTANTIALLY  ALL  OF  THE ASSETS OF A RESPONSIBLE PARTY TO A
 BUYER IF SUCH BUYER ENTERS INTO AN AGREEMENT WITH THE  DEPARTMENT  UNDER
 WHICH SUCH BUYER IS LIABLE FOR THE REMAINING INSTALLMENTS DUE UNDER THIS
 SUBDIVISION  IN  THE  SAME  MANNER AS IF SUCH BUYER WERE THE RESPONSIBLE
 PARTY.
   4. A. WITHIN ONE YEAR OF THE  EFFECTIVE  DATE  OF  THIS  ARTICLE,  THE
 DEPARTMENT  SHALL  PROMULGATE SUCH REGULATIONS AS ARE NECESSARY TO CARRY
 OUT THIS ARTICLE, INCLUDING BUT NOT LIMITED TO:
   I. ADOPTING METHODOLOGIES USING THE BEST AVAILABLE SCIENCE  TO  DETER-
 MINE  RESPONSIBLE  PARTIES  AND THEIR APPLICABLE SHARE OF COVERED GREEN-
 HOUSE GAS EMISSIONS CONSISTENT WITH THE PROVISIONS OF THIS ARTICLE;
   II. REGISTERING  ENTITIES  THAT  ARE  RESPONSIBLE  PARTIES  UNDER  THE
 PROGRAM;
   III.  ISSUING  NOTICES  OF COST RECOVERY DEMAND TO RESPONSIBLE PARTIES
 INFORMING THEM OF THE COST RECOVERY DEMAND AMOUNT; HOW  AND  WHERE  COST
 RECOVERY  DEMANDS  CAN BE PAID; THE POTENTIAL CONSEQUENCES OF NONPAYMENT
 AND LATE PAYMENT; AND INFORMATION REGARDING THEIR RIGHTS TO  CONTEST  AN
 ASSESSMENT;
   IV.  ACCEPTING PAYMENTS FROM, PURSUING COLLECTION EFFORTS AGAINST, AND
 NEGOTIATING SETTLEMENTS WITH RESPONSIBLE PARTIES; AND
   V. ADOPTING PROCEDURES FOR IDENTIFYING AND  SELECTING  CLIMATE  CHANGE
 ADAPTIVE INFRASTRUCTURE PROJECTS ELIGIBLE TO RECEIVE QUALIFYING EXPENDI-
 TURES, INCLUDING LEGISLATIVE BUDGET APPROPRIATIONS, ISSUANCE OF REQUESTS
 FOR PROPOSALS FROM LOCALITIES AND NOT-FOR-PROFIT AND COMMUNITY ORGANIZA-
 TIONS,  GRANTS TO PRIVATE INDIVIDUALS, OR OTHER METHODS AS DETERMINED BY
 THE DEPARTMENT, AND FOR DISPERSING MONEYS FROM THE FUND  FOR  QUALIFYING
 EXPENDITURES.    WHEN  CONSIDERING  PROJECTS INTENDED TO STABILIZE TIDAL
 SHORELINES, THE DEPARTMENT  SHALL  ENCOURAGE  THE  USE  OF  NATURE-BASED
 SOLUTIONS.    TOTAL QUALIFYING EXPENDITURES SHALL BE ALLOCATED IN SUCH A
 WAY AS TO ACHIEVE A GOAL THAT AT LEAST FORTY PERCENT  OF  THE  QUALIFIED
 EXPENDITURES  FROM THE PROGRAM, BUT NOT LESS THAN THIRTY-FIVE PERCENT OF
 SUCH EXPENDITURES, SHALL GO TO CLIMATE  CHANGE  ADAPTIVE  INFRASTRUCTURE
 PROJECTS  THAT  BENEFIT  DISADVANTAGED COMMUNITIES AS DEFINED IN SECTION
 75-0101 OF THIS CHAPTER.
   B. THE DEPARTMENT SHALL HOLD AT LEAST TWO PUBLIC HEARINGS, ONE IN-PER-
 SON AND ONE VIRTUAL, ON PROPOSED REGULATIONS, WITH A MINIMUM  OF  THIRTY
 DAYS' PUBLIC NOTICE.
   5. WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS ARTICLE, THE DEPART-
 MENT  SHALL  COMPLETE  A STATEWIDE CLIMATE CHANGE ADAPTATION MASTER PLAN
 FOR THE PURPOSE OF GUIDING THE DISPERSAL OF FUNDS  IN  A  TIMELY,  EFFI-
 CIENT,  AND  EQUITABLE  MANNER TO ALL REGIONS OF THE STATE IN ACCORDANCE
 WITH THE PROVISIONS OF  THIS  CHAPTER.  IN  COMPLETING  SUCH  PLAN,  THE
 DEPARTMENT SHALL:
   A. COLLABORATE WITH THE DEPARTMENT OF STATE, EMPIRE STATE DEVELOPMENT,
 THE  DEPARTMENT  OF  AGRICULTURE  AND MARKETS, THE NEW YORK STATE ENERGY
 RESEARCH AND DEVELOPMENT AUTHORITY, THE DEPARTMENT  OF  PUBLIC  SERVICE,
 AND THE NEW YORK INDEPENDENT SYSTEMS OPERATOR;
   B.  ASSESS  THE  ADAPTATION NEEDS AND VULNERABILITIES OF VARIOUS AREAS
 VITAL TO THE STATE'S ECONOMY, NORMAL FUNCTIONING,  AND  THE  HEALTH  AND
 WELL-BEING  OF  NEW  YORKERS, INCLUDING BUT NOT LIMITED TO: AGRICULTURE,
 BIODIVERSITY, ECOSYSTEM SERVICES, EDUCATION, FINANCE, HEALTHCARE,  MANU-
 FACTURING, HOUSING AND REAL ESTATE, RETAIL, TOURISM (INCLUDING STATE AND
 MUNICIPAL PARKS), TRANSPORTATION, AND MUNICIPAL AND LOCAL GOVERNMENT.
   C.  IDENTIFY  MAJOR  POTENTIAL,  PROPOSED,  AND ONGOING CLIMATE CHANGE
 ADAPTIVE INFRASTRUCTURE PROJECTS THROUGHOUT THE STATE;
 S. 2129                             7

   D. IDENTIFY OPPORTUNITIES FOR ALIGNMENT WITH EXISTING FEDERAL,  STATE,
 AND LOCAL FUNDING STREAMS;
   E. CONSULT WITH STAKEHOLDERS, INCLUDING LOCAL GOVERNMENTS, BUSINESSES,
 ENVIRONMENTAL  ADVOCATES,  RELEVANT  SUBJECT AREA EXPERTS, AND REPRESEN-
 TATIVES OF DISADVANTAGED COMMUNITIES; AND
   F. PROVIDE OPPORTUNITIES FOR PUBLIC ENGAGEMENT IN ALL REGIONS  OF  THE
 STATE.
   6.  THE  DEPARTMENT,  THE  DEPARTMENT OF TAXATION AND FINANCE, AND THE
 ATTORNEY GENERAL ARE HEREBY AUTHORIZED TO ENFORCE THE PROVISIONS OF THIS
 ARTICLE.
   7. THE DEPARTMENT OR THE DEPARTMENT  OF  TAXATION  AND  FINANCE  SHALL
 PROVIDE  AN OPPORTUNITY TO BE HEARD TO ANY RESPONSIBLE PARTIES THAT SEEK
 TO CONTEST A COST RECOVERY DEMAND. DETERMINATIONS MADE  IN  FAVOR  OF  A
 PETITIONER  AFTER SUCH HEARING SHALL BE FINAL AND CONCLUSIVE. A DETERMI-
 NATION IN FAVOR OF THE STATE MAY BE APPEALED UNDER ARTICLE SEVENTY-EIGHT
 OF THE CIVIL PRACTICE LAW AND RULES.
   8. MONEYS RECEIVED FROM COST RECOVERY DEMANDS SHALL  BE  DEPOSITED  IN
 THE CLIMATE CHANGE ADAPTATION FUND ESTABLISHED PURSUANT TO SECTION NINE-
 TY-SEVEN-M OF THE STATE FINANCE LAW.
   9.  A.  PROJECTS FUNDED PURSUANT TO THIS ARTICLE SHALL REQUIRE COMPLI-
 ANCE WITH PREVAILING WAGE REQUIREMENTS PURSUANT TO SECTION  TWO  HUNDRED
 TWENTY OF THE LABOR LAW.
   B.  ANY  STATE  ENTITY  OR MUNICIPALITY RECEIVING AT LEAST TWENTY-FIVE
 MILLION DOLLARS ($25,000,000) FROM  FUNDS  ALLOCATED  PURSUANT  TO  THIS
 ARTICLE  FOR  A  PROJECT  COSTING  GREATER  THAN  FIFTY  MILLION DOLLARS
 ($50,000,000) SHALL REQUIRE USE OF APPRENTICESHIP AGREEMENTS AS  DEFINED
 BY ARTICLE TWENTY-THREE OF THE LABOR LAW, WITH PRE-APPRENTICESHIP DIRECT
 ENTRY PROVIDERS REGISTERED WITH THE DEPARTMENT OF LABOR.
   C.  I. ANY STATE ENTITY OR MUNICIPALITY RECEIVING AT LEAST TWENTY-FIVE
 MILLION DOLLARS ($25,000,000) FROM  FUNDS  ALLOCATED  PURSUANT  TO  THIS
 ARTICLE  FOR  A PROJECT WHICH INVOLVES THE CONSTRUCTION, RECONSTRUCTION,
 ALTERATION, MAINTENANCE, MOVING, DEMOLITION, EXCAVATION, DEVELOPMENT  OR
 OTHER  IMPROVEMENT  OF ANY BUILDING, STRUCTURE OR LAND, SHALL BE SUBJECT
 TO SECTION TWO HUNDRED TWENTY-TWO OF THE LABOR LAW.
   II. ANY PRIVATELY OWNED PROJECT RECEIVING FUNDS ALLOCATED PURSUANT  TO
 THIS  TITLE  WHICH  UTILIZES  A  PROJECT LABOR AGREEMENT ON SUCH PROJECT
 SHALL NOT BE SUBJECT TO ARTICLE EIGHT OF THE LABOR LAW.
   D. IF DETERMINED  APPLICABLE,  A  MUNICIPALITY  OR  STATE  ENTITY  MAY
 REQUIRE  THAT THE PRIVATE OWNER OF A PROJECT, OR A THIRD PARTY ACTING ON
 THE OWNER'S BEHALF, ENTER INTO A LABOR PEACE AGREEMENT WITH AT LEAST ONE
 BONA FIDE LABOR ORGANIZATION EITHER:
   I. WHERE SUCH BONA FIDE LABOR ORGANIZATION  IS  ACTIVELY  REPRESENTING
 NON-CONSTRUCTION EMPLOYEES; OR
   II.  UPON  NOTICE BY A BONA FIDE LABOR ORGANIZATION THAT IS ATTEMPTING
 TO REPRESENT NON-CONSTRUCTION EMPLOYEES. FOR PURPOSES  OF  THIS  SECTION
 "LABOR  PEACE  AGREEMENT" MEANS AN AGREEMENT BETWEEN AN ENTITY AND LABOR
 ORGANIZATION THAT, AT A MINIMUM, PROTECTS THE STATE'S PROPRIETARY INTER-
 ESTS BY PROHIBITING LABOR ORGANIZATIONS AND  MEMBERS  FROM  ENGAGING  IN
 PICKETING,  WORK  STOPPAGES,  BOYCOTTS, AND ANY OTHER ECONOMIC INTERFER-
 ENCE.
   E. I. ANY MUNICIPALITY OR STATE ENTITY, OR A  THIRD  PARTY  ACTING  ON
 BEHALF  AND FOR THE BENEFIT OF THE MUNICIPALITY OR STATE ENTITY, IN EACH
 CONTRACT FOR CONSTRUCTION, RECONSTRUCTION, ALTERATION, REPAIR,  IMPROVE-
 MENT OR MAINTENANCE OF A PROJECT RECEIVING FUNDS UNDER THIS ARTICLE THAT
 IS  A  PUBLIC WORK, SHALL ENSURE THAT SUCH CONTRACT CONTAINS A PROVISION
 THAT THE STRUCTURAL IRON AND STRUCTURAL STEEL USED OR  SUPPLIED  IN  THE
 S. 2129                             8
 
 PERFORMANCE  OF  THE  CONTRACT  OR  ANY  SUBCONTRACT THERETO AND THAT IS
 PERMANENTLY INCORPORATED INTO THE PUBLIC WORK, SHALL BE PRODUCED OR MADE
 IN WHOLE OR SUBSTANTIAL PART IN THE UNITED STATES,  ITS  TERRITORIES  OR
 POSSESSIONS.  IN THE CASE OF A STRUCTURAL IRON OR STRUCTURAL STEEL PROD-
 UCT, ALL MANUFACTURING MUST TAKE PLACE IN THE UNITED  STATES,  FROM  THE
 INITIAL MELTING STAGE THROUGH THE APPLICATION OF COATINGS, EXCEPT METAL-
 LURGICAL  PROCESSES INVOLVING THE REFINEMENT OF STEEL ADDITIVES. FOR THE
 PURPOSES OF THIS SUBDIVISION, "PERMANENTLY INCORPORATED" SHALL  MEAN  AN
 IRON  OR STEEL PRODUCT THAT IS REQUIRED TO REMAIN IN PLACE AT THE END OF
 THE PROJECT CONTRACT, IN A FIXED LOCATION, AFFIXED TO THE PUBLIC WORK TO
 WHICH IT WAS INCORPORATED. IRON AND STEEL PRODUCTS THAT ARE  CAPABLE  OF
 BEING  MOVED  FROM  ONE LOCATION TO ANOTHER ARE NOT PERMANENTLY INCORPO-
 RATED INTO A PUBLIC WORK.
   II. THE PROVISIONS OF PARAGRAPH A OF THIS SUBDIVISION SHALL NOT  APPLY
 IF  THE HEAD OF THE DEPARTMENT, AGENCY, OR MUNICIPAL ENTITY CONSTRUCTING
 THE PUBLIC WORK, IN HIS OR HER  SOLE  DISCRETION,  DETERMINES  THAT  THE
 PROVISIONS  WOULD  NOT BE IN THE PUBLIC INTEREST, WOULD RESULT IN UNREA-
 SONABLE COSTS, OR THAT OBTAINING SUCH STEEL OR IRON IN THE UNITED STATES
 WOULD INCREASE THE COST OF THE CONTRACT BY AN  UNREASONABLE  AMOUNT,  OR
 SUCH  IRON  OR  STEEL,  INCLUDING WITHOUT LIMITATION STRUCTURAL IRON AND
 STRUCTURAL STEEL, CANNOT BE PRODUCED OR MADE IN  THE  UNITED  STATES  IN
 SUFFICIENT AND REASONABLY AVAILABLE QUANTITIES AND OF SATISFACTORY QUAL-
 ITY.
   10.  A.  THE DEPARTMENT SHALL CONDUCT AN INDEPENDENT EVALUATION OF THE
 CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM.  THE  PURPOSE  OF  THIS
 EVALUATION IS TO DETERMINE THE EFFECTIVENESS OF THE PROGRAM IN ACHIEVING
 ITS PURPOSES AS DEFINED IN SUBDIVISION TWO OF THIS SECTION.
   B.  SUCH  EVALUATION  SHALL BE PROVIDED TO THE GOVERNOR, THE TEMPORARY
 PRESIDENT OF THE SENATE AND THE SPEAKER OF THE  ASSEMBLY  ON  OR  BEFORE
 JANUARY  FIRST  OF  THE SECOND CALENDAR YEAR FOLLOWING THE YEAR IN WHICH
 THIS ARTICLE IS ENACTED INTO LAW, AND ANNUALLY ON  OR  BEFORE  SEPTEMBER
 THIRTIETH THEREAFTER.
   C.  ANY ENTITY CONTRACTED BY THE DEPARTMENT TO CONDUCT SUCH EVALUATION
 SHALL RECEIVE PROMPT PAYMENT OF ALL MONEYS DUE UPON COMPLETION  OF  SUCH
 EVALUATION.
   §  4. The state finance law is amended by adding a new section 97-m to
 read as follows:
   § 97-M. CLIMATE CHANGE ADAPTATION FUND. 1. THERE IS HEREBY ESTABLISHED
 IN THE CUSTODY OF THE COMPTROLLER AND THE COMMISSIONER OF  TAXATION  AND
 FINANCE  A  SPECIAL  REVOLVING  FUND  TO BE KNOWN AS THE "CLIMATE CHANGE
 ADAPTATION FUND" FOR THE PURPOSE OF RECEIVING MONEYS THROUGH COST RECOV-
 ERY DEMANDS AND ISSUING FUNDS FOR QUALIFYING  EXPENDITURES  PURSUANT  TO
 THE CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM ESTABLISHED IN ARTI-
 CLE SEVENTY-SIX OF THE ENVIRONMENTAL CONSERVATION LAW.
   2.  NO  MONIES  SHALL BE EXPENDED FROM THE FUND FOR ANY PROJECT EXCEPT
 QUALIFYING EXPENDITURES PURSUANT TO THE PROGRAM, INCLUDING THEIR  OPERA-
 TION  AND  MAINTENANCE,  AS  WELL  AS  REASONABLE  COSTS INCURRED BY THE
 DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR ADMINISTERING THE PROGRAM.
   3. REVENUES IN THE FUND SHALL  BE  KEPT  SEPARATE  AND  SHALL  NOT  BE
 COMMINGLED  WITH  ANY  OTHER MONEYS IN THE CUSTODY OF THE COMPTROLLER OR
 THE COMMISSIONER OF TAXATION AND FINANCE. ALL DEPOSITS OF SUCH  REVENUES
 SHALL,  IF REQUIRED BY THE COMPTROLLER, BE SECURED BY OBLIGATIONS OF THE
 UNITED STATES OR OF THE STATE HAVING A MARKET VALUE EQUAL AT  ALL  TIMES
 TO  THE  AMOUNT  OF  SUCH DEPOSITS AND ALL BANKS AND TRUST COMPANIES ARE
 AUTHORIZED TO GIVE SECURITY FOR SUCH DEPOSITS. ANY SUCH REVENUES IN SUCH
 FUND MAY, UPON THE DISCRETION OF THE COMPTROLLER, BE INVESTED  IN  OBLI-
 S. 2129                             9
 
 GATIONS  IN  WHICH  THE  COMPTROLLER IS AUTHORIZED TO INVEST PURSUANT TO
 SECTION NINETY-EIGHT-A OF THIS ARTICLE.
   4. ALL PAYMENTS OF MONEYS FROM THE FUND SHALL BE MADE ON THE AUDIT AND
 WARRANT OF THE COMPTROLLER.
   § 5. Availability of additional remedies. Nothing in this act shall be
 deemed  to preclude the pursuit of a civil action or other remedy by any
 person. The remedies provided in this  act  are  in  addition  to  those
 provided by existing statutory or common law.
   §  6.  Severability. If any word, phrase, clause, sentence, paragraph,
 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 word, phrase, clause, sentence, paragraph, section, or part ther-
 eof  directly  involved  in the controversy in which such judgment shall
 have been rendered.
   § 7. Construction. This act, being necessary for the  general  health,
 safety,  and  welfare  of  the  people of this state, shall be liberally
 construed to effect its purpose.
   § 8. This act shall take effect immediately.