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A03351 Summary:

BILL NOA03351B
 
SAME ASSAME AS S02129-B
 
SPONSORDinowitz
 
COSPNSRPaulin, Rosenthal L, Glick, Benedetto, Simon, Burgos, Tapia, Epstein, Darling, Dickens, Zinerman, Steck, Thiele, Kelles, Reyes, Levenberg, Hevesi, Gonzalez-Rojas, Fahy, Ardila, Carroll, Raga, De Los Santos, Ramos, Taylor, Colton, Lee, Bores, Cunningham, Gibbs, Otis, Sillitti, Simone, Burdick, Kim, Solages, Zaccaro, Clark, Cruz, Eachus, Seawright, Weprin, Burke, Shimsky, Lunsford, Stirpe, Davila, Bichotte Hermelyn, Lavine, Brown K, Barrett, Walker, Septimo, Stern, Peoples-Stokes, Aubry, Chandler-Waterman, Sayegh, Alvarez, Jackson, Pretlow, Santabarbara, Gunther, Bronson, Meeks, Cook, Jean-Pierre, Anderson, Jacobson, Dais, McDonald, Rozic, Pheffer Amato, Lucas, Rajkumar
 
MLTSPNSR
 
Add Art 76 §§76-0101 - 76-0105, En Con L; add §97-m, St Fin L
 
Establishes the climate change adaptation cost recovery program to require companies that have contributed significantly to the buildup of climate-warming greenhouse gases in the atmosphere to bear a share of the costs of needed infrastructure investments to adapt to climate change; mandates that projects funded by the program require compliance with prevailing wage requirements; requires that contracts for funded projects contain a provision that the structural iron and structural steel used or supplied in the performance of the contract or any subcontract thereto shall be produced or made in whole or substantial part in the United States, its territories or possessions; makes additional provisions; establishes the climate change adaptation fund.
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A03351 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3351B
 
SPONSOR: Dinowitz
  TITLE OF BILL: 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   PURPOSE: The purpose of the bill is to establish the climate change adaptation cost recovery program, which would require companies that have contrib- uted significantly to the buildup of greenhous'e gases, the primary cause of climate change, to bear a share of the costs of infrastructure investments required to adapt to the impacts of climate change in New York State.   SUMMARY OF PROVISIONS: Section 1: Names the bill the Climate Change Superfund Act. Section 2: Legislative findings. Section 3: Creates a new article 76 in the environmental conservation law to create the climate change adaptation cost recovery program: § 76-101: Definitions § 76-103: 1. Establishes the climate change adaptation cost recovery program. 2. Outlines the purposes and structure of the program. 3, Details the method for calculating the cost recovery demand amount for each fossil fuel company found to be a responsible party. 4. Requires DEC to promulgate regulations to implement the program, including the identification of responsible parties, the procedures for issuing notices of cost recovery demands and collecting payment on those demands, and procedures for identifying projects that would qualify as climate change adaptive infrastructure projects, as well as a require- ment to. hold at least two public hearings on the proposed regulations. 5. Requires DEC, within two years, to complete a Statewide Climate Change Adaptation Master Plan for the purpose of guiding the dispersal of funds in a timely, efficient, and equitable manner to all regions of the state. 6. Authorizes DEC, the Department of Taxation and Finance, and the attorney general to enforce the provisions of the article. 7. Entitles a fossil fuel company designated as a responsible party an opportunity to contest a proposed action under this statute consistent with due process requirements of the U.S. Constitution. 8. Requires monies received to be deposited in the climate change adap- tation fund. 9. Requires DEC to conduct an independent evaluation of the program. § 76-105: 1. Requires public entities to assess and implement -strategies to increase employment opportunities and improve job quality when imple- menting projects funded through the program. Further requires the gover- nor to publish a report within one hundred and twenty days on steps that will be taken to ensure compliance the department or office or both which are charged with implementation, regulations necessary to ensure prioritization of the statewide goal of creating good jobs and increas- ing employment opportunities, and steps that will be taken with all public entities to implement a system to track compliance, accept reports of non-compliance for enforcement action, and report annually on the adoption of these standards to the legislature beginning one year from the effective date of this section. 2. Defines public entity. 3. Requires projects funded through the program to comply with prevail- ing wage requirements, and adds additional requirements for certain projects, including project labor agreements, labor harmony policies, US manufacturing requirements, apprenticeship agreements, and the preserva- tion of worker rights and benefits and civil service protection and collective bargaining status. 4. Requires applicant, bidders, and responders for contracts for renewa- ble energy projects, energy efficiency projects, and other projects funded by the program, except for construction projects, to submit a New York jobs plan consisting of jobs that would result from being awarded the bid or contract and requires information for nonsupervisory posi- tions. Subcontractors would also be• subject to the plan. Further requires DEC and the Department of Labor to develop a web-based portal to track the plan commitments and compliance. 5. Nothing set forth in this section shall be construed to impede, infringe, or diminish the rights and benefits which accrue to employees through bona fide collective bargaining agreements, or otherwise dimin- ish the integrity of the existing collective bargaining relationship. 6. Nothing set forth in this section shall preclude a public entity from setting additional requirements or standards in addition to those set forth in this article. Section 4: Creates a new section 97-m within the state finance law establishing the climate change adaptation fund in the custody of the comptroller and the commissioner of taxation and finance, to receive monies through cost recovery demands and issue funds for qualifying expenditures of the climate change adaptation cost recovery program. Section 5: Nothing in this act shall preclude the pursuit of civil action or other remedy by any person. Section 6: Severability. Section 7: Liberal construction. Section 8: Effective date.   JUSTIFICATION: Climate change, resulting primarily from the combustion of fossil fuels, is an immediate, grave threat to New York's communities, environment, and economy. In addition to mitigating the further buildup of greenhouse gases, the State must take action to adapt to certain consequences of climate change that are irreversible, including rising sea levels, increasing temperatures, extreme weather events, flooding, heat waves, toxic algae 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 infras- tructure. New York has previously adopted programs now in place - the inactive hazardous waste disposal site program (also known as the state superfund program) and the oil spill fund - to remediate environmental damage to lands and waters based on the principle that, where possible, the enti- ties responsible for environmental damage should pay for its clean up. No similar program exists yet for the pollution of the atmosphere by greenhouse gas buildup as a result of burning fossil fuels. Based on decades of research it is now possible to determine with great accuracy the share of carbon dioxide released into the atmosphere 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 emission of carbon dioxide into the atmosphere during a given time period. This bill would establish a Climate Change Adaptation Cost Recovery Program that will require companies that have contributed significantly to the buildup of greenhouse gases in the atmosphere to bear a propor- tionate share of the cost of infrastructure investments required to adapt to the impacts of climate change in New York State. The obli- gation to pay under the program is based on fossil fuel companies' historic contribution to the buildup of greenhouse gases. 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. Nonetheless, it is important to recognize that the actions of many of the biggest fossil fuel companies have been unconscionable, closely reflecting the strategy of denial, deflection, and delay perfected 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. For example, while claiming a commitment to renewable energy, Chevron invested only 2%. and ExxonMobil only 1.6% of their total capital investments in low-carbon sources. In 2022, the fossil fuel industry has taken advantage of several over- lapping global crises to earn immense profits (Chevron and ExxonMobil had combined profits for the first quarter of 2022 of over $11.8 billion), charging incredibly high prices while aggressively rejecting any responsibility for the costs of its business activities. While all the profits accrue to the companies, all the costs of climate change are paid by taxpayers. This is a market failure that needs to be addressed through policy change. The Climate Change Adaptation Cost Recovery Program is remedial in nature, seeking compensation for damages resulting from the past actions of polluters. Payments by historical polluters into the 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 necessary to protect the public safety and welfare in the face of the growing impacts of climate change. Disad- vantaged communities would receive at least 35%, with a goal of at least 40%, of the overall benefits of Program spending.   LEGISLATIVE HISTORY: 2021-22: A.10556/5.9417 - Environmental Conservation / Environmental Conservation   FISCAL IMPACT ON THE STATE: Potential to collect up to $75 billion over 25 years for climate change adaptive infrastructure projects in the state.   EFFECTIVE DATE: This act shall take effect immediately.
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A03351 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3351--B
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 2, 2023
                                       ___________
 
        Introduced by M. of A. DINOWITZ, PAULIN, L. ROSENTHAL, GLICK, BENEDETTO,
          SIMON,  BURGOS,  TAPIA,  EPSTEIN,  DARLING,  DICKENS, ZINERMAN, STECK,
          THIELE, KELLES, REYES, LEVENBERG, HEVESI, GONZALEZ-ROJAS, FAHY,  ARDI-
          LA,  CARROLL,  RAGA, DE LOS SANTOS, RAMOS, TAYLOR, COLTON, LEE, BORES,
          CUNNINGHAM, GIBBS, OTIS,  SILLITTI,  SIMONE,  BURDICK,  KIM,  SOLAGES,
          ZACCARO, CLARK, CRUZ, EACHUS, SEAWRIGHT, WEPRIN, BURKE, SHIMSKY, LUNS-
          FORD,  STIRPE,  DAVILA,  BICHOTTE HERMELYN, LAVINE, K. BROWN, BARRETT,
          WALKER,  SEPTIMO,  STERN,  PEOPLES-STOKES,  AUBRY,  CHANDLER-WATERMAN,
          SAYEGH, ALVAREZ, JACKSON, PRETLOW, BUTTENSCHON, SANTABARBARA, GUNTHER,
          BRONSON, MEEKS, COOK, JEAN-PIERRE, ANDERSON, JACOBSON, DAIS, McDONALD,
          ROZIC, PHEFFER AMATO, LUCAS, RAJKUMAR -- read once and referred to the
          Committee  on Environmental Conservation -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee  --  recommitted to the Committee on Environmental Conservation in
          accordance with Assembly Rule 3, sec. 2 -- committee discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee
 
        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:
 
     1    Section 1. This act shall be known and may be cited  as  the  "climate
     2  change superfund act".
     3    §  2.  Legislative  findings.  The  legislature finds and declares the
     4  following:
     5    1. Climate change, resulting primarily from the combustion  of  fossil
     6  fuels,  is  an immediate, grave threat to the state's communities, envi-
     7  ronment, and economy. In addition to mitigating the further  buildup  of
     8  greenhouse  gases, the state must take action to adapt to certain conse-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02710-13-4

        A. 3351--B                          2
 
     1  quences of climate change that are irreversible,  including  rising  sea
     2  levels,  increasing temperatures, extreme weather events, flooding, heat
     3  waves, toxic  algal  blooms  and  other  climate-change-driven  threats.
     4  Maintaining New York's quality of life into the future, particularly for
     5  young  people,  who  will experience greater impacts from climate change
     6  over their lifetimes, will be one of  the  state's  greatest  challenges
     7  over  the  next  three  decades.  Meeting  that challenge will require a
     8  shared commitment of  purpose,  huge  investments  in  new  or  upgraded
     9  infrastructure, and new revenue sources to pay for those investments.
    10    2.  New  York has previously adopted programs now in place - the inac-
    11  tive hazardous waste disposal site (state superfund) program and the oil
    12  spill fund - to remediate environmental damage to lands and waters based
    13  on the principle that, where  possible,  the  entities  responsible  for
    14  environmental  damage  should  pay  for  its cleanup. No similar program
    15  exists yet for the pollution of the atmosphere by greenhouse gas buildup
    16  as a result of burning fossil fuels.
    17    3. Based on decades of research it is now possible to  determine  with
    18  great  accuracy  the  share of greenhouse gases released into the atmos-
    19  phere by specific fossil fuel companies over the last 70 years or  more,
    20  making  it possible to assign liability to and require compensation from
    21  companies commensurate with their emissions during a given time period.
    22    4. It is the intent of the legislature to establish a  climate  change
    23  adaptation  cost  recovery program that will require companies that have
    24  contributed significantly  to  the  buildup  of  climate  change-driving
    25  greenhouse  gases in the atmosphere to bear a proportionate share of the
    26  cost of infrastructure investments  and  other  expenses  necessary  for
    27  comprehensive  adaptation  to  the impacts of climate change in New York
    28  state.
    29    5. The obligation to pay under the program is based on the fossil fuel
    30  companies' historic contribution to the buildup of greenhouse gases that
    31  is largely responsible for climate change. The program operates under  a
    32  standard  of  strict  liability;  companies are required to pay into the
    33  fund because the use of their products caused the pollution. No  finding
    34  of wrongdoing is required.
    35    6.  a.  Payments by historical polluters into the climate change adap-
    36  tation cost recovery program would be used for new or  upgraded  infras-
    37  tructure  needs such as coastal wetlands restoration, storm water drain-
    38  age system upgrades, energy efficient  cooling  systems  in  public  and
    39  private  buildings,  including  schools  and public housing, support for
    40  programs  addressing  climate-driven  public  health   challenges,   and
    41  responses  to  extreme  weather  events,  all  of which are necessary to
    42  protect the public safety and welfare in the face of the growing impacts
    43  of climate change.
    44    b. The cost to the state of  climate  adaptation  investments  through
    45  2050  will  easily  reach  several  hundred billion dollars, based on an
    46  array of estimates for projects impacting different regions  across  the
    47  state,  far  more than the $75 billion being assessed on the fossil fuel
    48  industry.  For example, upgrading New York City's sewer system  to  deal
    49  with  regularly-occurring  large rain events is estimated to cost around
    50  $100 billion; a single project proposed by the Army Corps  of  Engineers
    51  to protect New York City from storm-driven flooding is estimated to cost
    52  $52 billion; protecting Long Island from extreme weather is estimated to
    53  cost  at  least  $75-$100  billion;  a recent study from the State Comp-
    54  troller found that from 2018 to 2028,  55  percent  of  New  York  State
    55  localities'  municipal  spending outside of New York City was or will be
    56  related to climate change and that in fiscal year 2023-2024  alone,  New

        A. 3351--B                          3
 
     1  York City planned to spend $829 million on projects dedicated exclusive-
     2  ly  to  adaptation  and  resilience,  with an additional $1.3 billion on
     3  projects that are partially for these purposes. These  are  only  a  few
     4  examples  of  the  numerous projects that are now or will soon be needed
     5  across the state.
     6    c. The total assessment rate of $3 billion dollars per year represents
     7  a small percentage of the extraordinary  cost  to  New  York  State  for
     8  repairing  from  and  preparing for climate change-driven extreme events
     9  over the next 25 years, and is designed to have a meaningful  impact  on
    10  the  burden  borne  by  New  York State taxpayers for climate adaptation
    11  while being sufficiently limited so as to not impose a punitive negative
    12  impact on an industry in which just the three largest domestic  oil  and
    13  gas  producers  made a combined $85.6 billion in profits in 2023. Recent
    14  science has determined that the largest one hundred fossil fuel  produc-
    15  ing companies are responsible for more than 70% of global greenhouse gas
    16  emissions  since 1988, and therefore bear a much higher share of respon-
    17  sibility for climate damage to New York State than is represented by the
    18  $75 billion being assessed them.
    19    d. At least 35 percent, with a goal of 40 percent or more of the over-
    20  all benefits of program spending would go  to  climate  change  adaptive
    21  infrastructure projects that directly benefit disadvantaged communities.
    22    7.    A covered period of 2000-2018 has been selected. Over 70 percent
    23  of the total increase in greenhouse gas concentrations since the  Indus-
    24  trial  Revolution has occurred since 1950, with a marked increase in the
    25  rate of emissions after the year 2000. By 2000 the  science  of  climate
    26  change  was  well  established,  and no reasonable corporate actor could
    27  have failed to anticipate regulatory action to address its  impacts.  In
    28  addition, the data necessary to attribute proportional responsibility is
    29  very robust in the covered period.
    30    8.  This act is not intended to intrude on the authority of the feder-
    31  al government in areas where it has preempted the right of the states to
    32  legislate.  This  act  is  remedial  in nature, seeking compensation for
    33  damages resulting from the past actions of polluters.
    34    § 3. The environmental conservation law is amended  by  adding  a  new
    35  article 76 to read as follows:
    36                                 ARTICLE 76
    37               CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM
    38  Section 76-0101. Definitions.
    39          76-0103. The climate change adaptation cost recovery program.
    40          76-0105. Labor and job standards and worker protection.
    41  § 76-0101. Definitions.
    42    For  the  purposes  of this article the following terms shall have the
    43  following meanings:
    44    1. "Applicable payment date" means September thirtieth of  the  second
    45  calendar  year  following the year in which this article is enacted into
    46  law.
    47    2. "Climate change adaptive infrastructure project" means  an  infras-
    48  tructure  project designed to avoid, moderate, repair, or adapt to nega-
    49  tive impacts caused by climate change, and to assist communities, house-
    50  holds, and businesses in  preparing  for  future  climate  change-driven
    51  disruptions.  Such  projects  include  but  are not limited to restoring
    52  coastal wetlands and developing other nature-based solutions and coastal
    53  protections; upgrading storm water drainage  systems;  making  defensive
    54  upgrades  to roads, bridges, subways, and transit systems; preparing for
    55  and recovering from hurricanes and other extreme weather events;  under-
    56  taking  preventive  health  care  programs and providing medical care to

        A. 3351--B                          4
 
     1  treat illness or injury caused by the effects of climate  change;  relo-
     2  cating, elevating, or retrofitting sewage treatment plants vulnerable to
     3  flooding; installing energy efficient cooling systems and other weather-
     4  ization  and  energy  efficiency  upgrades  and  retrofits in public and
     5  private buildings, including schools and public housing; upgrading parts
     6  of the electrical grid to increase stability and  resilience,  including
     7  supporting  the  creation  of  self-sufficient  clean energy microgrids;
     8  addressing urban heat island effects through green spaces, urban  fores-
     9  try, and other interventions; and responding to toxic algae blooms, loss
    10  of  agricultural  topsoil, and other climate-driven ecosystem threats to
    11  forests, farms, fisheries, and food systems.
    12    3. "Coal" shall have the same definition as in section  1-103  of  the
    13  energy law.
    14    4.  "Controlled  group" means two or more entities treated as a single
    15  employer under section 52(a) or (b) or section  414(m)  or  (o)  of  the
    16  Internal  Revenue  Code.  In applying subsections (a) and (b) of section
    17  52, section 1563 of the Internal Revenue Code shall be  applied  without
    18  regard to subsection(b)(2)(C). For purposes of this article, entities in
    19  a  controlled group are treated as a single entity for purposes of meet-
    20  ing the definition of responsible party and are  jointly  and  severally
    21  liable for payment of any cost recovery demand owed by any entity in the
    22  controlled group.
    23    5.  "Cost recovery demand" means a charge asserted against a responsi-
    24  ble party for cost recovery payments under the program  for  payment  to
    25  the fund.
    26    6. "Covered greenhouse gas emissions" means, with respect to any enti-
    27  ty,  the total quantity of greenhouse gases released into the atmosphere
    28  during the covered period, expressed in metric tons  of  carbon  dioxide
    29  equivalent, as defined in section 75-0101 of this chapter, including but
    30  not   limited  to  releases  of  greenhouse  gases  resulting  from  the
    31  extraction, storage,  production,  refinement,  transport,  manufacture,
    32  distribution,  sale,  and  use  of  fossil  fuels  or petroleum products
    33  extracted, produced, refined, or sold by such entity.
    34    7. "Covered period" means the period that  began  January  first,  two
    35  thousand and ended on December thirty-first, two thousand eighteen.
    36    8.  "Crude  oil"  means  oil or petroleum of any kind and in any form,
    37  including bitumen, oil sands, heavy oil, conventional and unconventional
    38  oil, shale oil, natural gas liquids,  condensates,  and  related  fossil
    39  fuels.
    40    9. "Entity" means any individual, trustee, agent, partnership, associ-
    41  ation,  corporation,  company,  municipality,  political subdivision, or
    42  other legal organization, including a foreign nation, that holds or held
    43  an ownership interest in a fossil fuel business during the covered peri-
    44  od.
    45    10. "Fossil fuel" shall have the same definition as in  section  1-103
    46  of the energy law.
    47    11. "Fossil fuel business" means a business engaging in the extraction
    48  of fossil fuels or the refining of petroleum products.
    49    12. "Fuel gases" shall have the same definition as in section 1-103 of
    50  the energy law.
    51    13. "Fund" means the climate change adaptation fund established pursu-
    52  ant to section ninety-seven-m of the state finance law.
    53    14.  "Greenhouse  gas"  shall  have  the same definition as in section
    54  75-0101 of this chapter.
    55    15. "Nature-based solutions" shall mean projects that utilize or mimic
    56  nature or natural processes and functions and that may also offer  envi-

        A. 3351--B                          5
 
     1  ronmental,  economic,  and social benefits, while increasing resilience.
     2  Nature-based solutions include both green and natural infrastructure.
     3    16.  "Notice  of cost recovery demand" means the written communication
     4  informing a responsible party of the amount of the cost recovery  demand
     5  payable to the fund.
     6    17.  "Petroleum products" shall have the same definition as in section
     7  1-103 of the energy law.
     8    18. "Program"  means  the  climate  change  adaptation  cost  recovery
     9  program established under section 76-0103 of this article.
    10    19. "Qualifying expenditure" means an authorized payment from the fund
    11  in  support of a climate change adaptive infrastructure project, includ-
    12  ing its operation and maintenance, as defined by the department.
    13    20. "Responsible party" means any entity (or a successor  in  interest
    14  to  such entity described herein), which, during any part of the covered
    15  period, was engaged in the trade or business of extracting  fossil  fuel
    16  or  refining crude oil and is determined by the department to be respon-
    17  sible for more than one billion tons of  covered  greenhouse  gas  emis-
    18  sions. The term responsible party shall not include any person who lacks
    19  sufficient  connection  with the state to satisfy the nexus requirements
    20  of the United States Constitution.
    21  § 76-0103. The climate change adaptation cost recovery program.
    22    1. There is hereby established a climate change adaptation cost recov-
    23  ery program administered by the department.
    24    2. The purposes of the program shall be the following:
    25    a. To secure compensatory payments from responsible parties based on a
    26  standard of strict liability to provide a source of revenue for  climate
    27  change adaptive infrastructure projects within the state.
    28    b. To determine proportional liability of responsible parties pursuant
    29  to subdivision three of this section;
    30    c.  To  impose  cost recovery demands on responsible parties and issue
    31  notices of cost recovery demands;
    32    d. To accept and collect payment from responsible parties;
    33    e. To identify climate change adaptive infrastructure projects;
    34    f.  To  disperse  funds  to  climate  change  adaptive  infrastructure
    35  projects; and
    36    g.  To allocate funds in such a way as to achieve a goal that at least
    37  forty percent of the qualified expenditures from the  program,  but  not
    38  less  than thirty-five percent of such expenditures, shall go to climate
    39  change  adaptive  infrastructure  projects  that  benefit  disadvantaged
    40  communities as defined in section 75-0101 of this chapter.
    41    3.  a. A responsible party shall be strictly liable, without regard to
    42  fault, for a share of the costs of climate change  adaptive  infrastruc-
    43  ture  projects,  including their operation and maintenance, supported by
    44  the fund.
    45    b. With respect to each responsible party, the  cost  recovery  demand
    46  shall  be  equal  to an amount that bears the same ratio to seventy-five
    47  billion dollars as the responsible party's applicable share  of  covered
    48  greenhouse  gas  emissions  bears  to the aggregate applicable shares of
    49  covered greenhouse gas emissions of all responsible parties.
    50    c. The applicable share of covered greenhouse gas emissions taken into
    51  account under this section for any responsible party shall be the amount
    52  by which the covered  greenhouse  gas  emissions  attributable  to  such
    53  responsible party exceeds one billion metric tons.
    54    d.  Where  an entity owns a minority interest in another entity of ten
    55  percent or more, the calculation of the  entity's  applicable  share  of
    56  greenhouse  gas  emissions  taken  into account under this section shall

        A. 3351--B                          6
 
     1  include the applicable share of  greenhouse  gas  emissions  taken  into
     2  account  under this section by the entity in which the responsible party
     3  holds a minority interest, multiplied by the percentage of the  minority
     4  interest held.
     5    e.  In determining the amount of greenhouse gas emissions attributable
     6  to any entity, an amount equivalent to nine hundred forty-two  and  one-
     7  half  metric  tons  of  carbon  dioxide  equivalent  shall be treated as
     8  released for every million pounds of coal attributable to  such  entity;
     9  an  amount  equivalent  to  four hundred thirty-two thousand one hundred
    10  eighty metric tons of carbon dioxide  equivalent  shall  be  treated  as
    11  released  for  every  million  barrels of crude oil attributable to such
    12  entity; and an amount equivalent to fifty-three  thousand  four  hundred
    13  forty  metric  tons  of  carbon  dioxide  equivalent shall be treated as
    14  released for every million cubic feet of fuel gases attributable to such
    15  entity.
    16    f. The commissioner may adjust the cost recovery demand  amount  of  a
    17  responsible  party refining petroleum products (or who is a successor in
    18  interest to such an entity) if such responsible party establishes to the
    19  satisfaction of the commissioner that a portion  of  the  cost  recovery
    20  demand amount was attributable to the refining of crude oil extracted by
    21  another  responsible party (or who is a successor in interest to such an
    22  entity) that accounted for such crude oil in determining its cost recov-
    23  ery demand amount.
    24    g. Payment of a cost recovery demand shall be  made  in  full  on  the
    25  applicable  payment  date  unless  a  responsible party elects to pay in
    26  installments pursuant to paragraph h of this subdivision.
    27    h. A responsible party may elect  to  pay  the  cost  recovery  demand
    28  amount  in  twenty-four  annual installments, eight percent of the total
    29  due in the first installment and four percent of the total due  in  each
    30  of the following twenty-three installments. If an election is made under
    31  this  paragraph,  the  first installment shall be paid on the applicable
    32  payment date and each subsequent installment shall be paid on  the  same
    33  date as the applicable payment date in each succeeding year.
    34    i.  If there is any addition to the original amount of the cost recov-
    35  ery demand for failure to timely pay any installment required under this
    36  subdivision, a liquidation or sale of substantially all  the  assets  of
    37  the  responsible party (including in a proceeding under U.S. Code: Title
    38  11 or similar case), a cessation of business by the  responsible  party,
    39  or  any  similar  circumstance, then the unpaid balance of all remaining
    40  installments shall be due on the date of such event (or in the case of a
    41  proceeding under U.S. Code: Title 11 or similar case, on the day  before
    42  the  petition  is  filed). The preceding sentence shall not apply to the
    43  sale of substantially all of the assets of  a  responsible  party  to  a
    44  buyer  if  such buyer enters into an agreement with the department under
    45  which such buyer is liable for the remaining installments due under this
    46  subdivision in the same manner as if such  buyer  were  the  responsible
    47  party.
    48    4.  a.  Within  one  year  of  the effective date of this article, the
    49  department shall promulgate such regulations as are necessary  to  carry
    50  out this article, including but not limited to:
    51    i.  adopting  methodologies using the best available science to deter-
    52  mine responsible parties and their applicable share  of  covered  green-
    53  house gas emissions consistent with the provisions of this article;
    54    ii.  registering  entities  that  are  responsible  parties  under the
    55  program;

        A. 3351--B                          7

     1    iii. issuing notices of cost recovery demand  to  responsible  parties
     2  informing  them  of  the cost recovery demand amount; how and where cost
     3  recovery demands can be paid; the potential consequences  of  nonpayment
     4  and  late  payment; and information regarding their rights to contest an
     5  assessment;
     6    iv.  accepting payments from, pursuing collection efforts against, and
     7  negotiating settlements with responsible parties; and
     8    v. adopting procedures for identifying and  selecting  climate  change
     9  adaptive infrastructure projects eligible to receive qualifying expendi-
    10  tures, including legislative budget appropriations, issuance of requests
    11  for proposals from localities and not-for-profit and community organiza-
    12  tions,  grants to private individuals, or other methods as determined by
    13  the department, and for dispersing moneys from the fund  for  qualifying
    14  expenditures.    When  considering  projects intended to stabilize tidal
    15  shorelines, the department  shall  encourage  the  use  of  nature-based
    16  solutions.    Total qualifying expenditures shall be allocated in such a
    17  way as to achieve a goal that at least forty percent  of  the  qualified
    18  expenditures  from the program, but not less than thirty-five percent of
    19  such expenditures, shall go to climate  change  adaptive  infrastructure
    20  projects  that  benefit  disadvantaged communities as defined in section
    21  75-0101 of this chapter.
    22    b. The department shall hold at least two public hearings, one in-per-
    23  son and one virtual, on proposed regulations, with a minimum  of  thirty
    24  days'  public  notice in compliance with the provisions of article seven
    25  of the public officers law.
    26    5. Within two years of the effective date of this article, the depart-
    27  ment shall complete a statewide climate change  adaptation  master  plan
    28  for  the  purpose  of  guiding the dispersal of funds in a timely, effi-
    29  cient, and equitable manner to all regions of the  state  in  accordance
    30  with  the  provisions  of  this  chapter.  In  completing such plan, the
    31  department shall:
    32    a. collaborate with the department of state, empire state development,
    33  the department of agriculture and markets, the  New  York  state  energy
    34  research  and  development  authority, the department of public service,
    35  and the New York independent systems operator;
    36    b. assess the adaptation needs and vulnerabilities  of  various  areas
    37  vital  to  the  state's  economy, normal functioning, and the health and
    38  well-being of New Yorkers, including but not  limited  to:  agriculture,
    39  biodiversity,  ecosystem services, education, finance, healthcare, manu-
    40  facturing, housing and real estate, retail, tourism (including state and
    41  municipal parks), transportation, and municipal and local government.
    42    c. identify major potential,  proposed,  and  ongoing  climate  change
    43  adaptive infrastructure projects throughout the state;
    44    d.  identify opportunities for alignment with existing federal, state,
    45  and local funding streams;
    46    e. consult with stakeholders, including local governments, businesses,
    47  environmental advocates, relevant subject area  experts,  and  represen-
    48  tatives of disadvantaged communities; and
    49    f.  provide  opportunities for public engagement in all regions of the
    50  state.
    51    6. The department, the department of taxation  and  finance,  and  the
    52  attorney  general  are  hereby  authorized  to implement and enforce the
    53  provisions of this article.
    54    7. The department or the department  of  taxation  and  finance  shall
    55  provide  an opportunity to be heard to any responsible parties that seek
    56  to contest a cost recovery demand. Determinations made  in  favor  of  a

        A. 3351--B                          8
 
     1  petitioner  after such hearing shall be final and conclusive. A determi-
     2  nation in favor of the state may be appealed under article seventy-eight
     3  of the civil practice law and rules.
     4    8.  Moneys  received  from cost recovery demands shall be deposited in
     5  the climate change adaptation fund established pursuant to section nine-
     6  ty-seven-m of the state finance law.
     7    9. a. The department shall conduct an independent  evaluation  of  the
     8  climate  change  adaptation  cost  recovery program. The purpose of this
     9  evaluation is to determine the effectiveness of the program in achieving
    10  its purposes as defined in subdivision two of this section.
    11    b. Such evaluation shall be provided to the  governor,  the  temporary
    12  president  of  the  senate  and the speaker of the assembly on or before
    13  January first of the second calendar year following the  year  in  which
    14  this  article  is  enacted into law, and annually on or before September
    15  thirtieth thereafter.
    16    c. Any entity contracted by the department to conduct such  evaluation
    17  shall  receive  prompt payment of all moneys due upon completion of such
    18  evaluation.
    19  § 76-0105. Labor and job standards and worker protection.
    20    1. All  public  entities  involved  in  implementing  projects  funded
    21  through the climate change adaptation cost recovery program shall assess
    22  and  implement  strategies  to  increase  employment  opportunities  and
    23  improve job quality. Within one hundred twenty  days  of  the  effective
    24  date of this section, the governor shall publish a report, accessible on
    25  the state's website, which provides:
    26    a.  steps  that  will be taken to ensure compliance with this section,
    27  including the department or office, or combination thereof, charged with
    28  implementation of the provisions of this section;
    29    b. regulations necessary to ensure the prioritization of the statewide
    30  goal of creating good jobs and increasing employment opportunities; and
    31    c. steps that will be taken with all public entities, including  local
    32  and county level governments, to implement a system to track compliance,
    33  accept  reports  of  non-compliance  for  enforcement action, and report
    34  annually on the adoption of these standards to the legislature  starting
    35  one year from the effective date of this section.
    36    2.  For  purposes  of  this section, "public entity" shall include the
    37  state and all of its political subdivisions, including but  not  limited
    38  to  counties,  municipalities,  agencies,  authorities,  public  benefit
    39  corporations, public  trusts,  and  local  development  corporations  as
    40  defined  in  subdivision  eight  of  section eighteen hundred one of the
    41  public authorities law or section fourteen hundred eleven  of  the  not-
    42  for-profit  corporation  law,  a  municipal  corporation  as  defined in
    43  section one hundred nineteen-n of the general municipal law,  an  indus-
    44  trial  development  agency  formed pursuant to article eighteen-A of the
    45  general municipal  law  or  industrial  development  authorities  formed
    46  pursuant  to article eight of the public authorities law, and any state,
    47  local or interstate or international authorities as defined  in  section
    48  two  of  the public authorities law; and shall include any trust created
    49  by any such entities.
    50    3.  In  considering  and  issuing  permits,   licenses,   regulations,
    51  contracts and other administrative approvals and decisions necessary for
    52  implementation  of  projects  funded  in  whole, or in part, through the
    53  climate change adaptation cost recovery  program,  all  public  entities
    54  shall apply the following standards:
    55    a.  For  any construction work, the payment of no less than prevailing
    56  wages for all employees of any contractors and subcontractors,  consist-

        A. 3351--B                          9
 
     1  ent  with sections two hundred twenty, two hundred twenty-a, two hundred
     2  twenty-b, two  hundred  twenty-i,  two  hundred  twenty-three,  and  two
     3  hundred  twenty-four-b of the labor law, and building services, consist-
     4  ent  with  article nine of the labor law; where a recipient of financial
     5  assistance contracts building service work or operations and maintenance
     6  work to a building service contractor, the contractor  is  held  to  the
     7  same  obligations with respect to prevailing wages as the recipient. The
     8  recipient must include terms establishing  this  obligation  within  any
     9  contract signed with a contractor.
    10    b.  (i) Any public entity receiving at least five million dollars from
    11  funds allocated pursuant to the climate change adaptation cost  recovery
    12  program  for  a project which involves the construction, reconstruction,
    13  alteration, maintenance, moving, demolition, excavation, development  or
    14  other  improvement  of any building, structure or land, shall be subject
    15  to section two hundred twenty-two of the labor law.
    16    (ii) Any privately owned project receiving funds allocated pursuant to
    17  the climate change adaptation cost recovery  program  which  utilizes  a
    18  project  labor agreement on such project shall not be subject to article
    19  eight of the labor law.
    20    c. The inclusion of contract language requiring contractors to  estab-
    21  lish  labor  harmony  policies.  The public entity may require a private
    22  owner, or a third party acting on such owner's behalf, as a condition of
    23  receiving funds pursuant to the climate change adaptation cost  recovery
    24  program,  to  stipulate  to  the public entity that it will enter into a
    25  labor peace agreement with at least one  bona  fide  labor  organization
    26  either  where such bona fide labor organization is actively representing
    27  employees in such job-type or, upon notice, by a bona fide labor  organ-
    28  ization that is attempting to represent employees in such job-type.  For
    29  purposes  of  this  section  "labor  peace agreement" means an agreement
    30  between an entity and labor organization that, at  a  minimum,  protects
    31  the state's proprietary interests by prohibiting labor organizations and
    32  members from engaging in work stoppages, boycotts, and any other econom-
    33  ic interference with the relevant project or program.
    34    d.  (i)  The  inclusion of contract language with a provision that the
    35  iron,  steel,  aluminum,  glass,  copper,  manufactured  products,   and
    36  construction  products, including without limitation, vehicles, omnibus-
    37  es, school buses, trucks, construction equipment,  earth  moving  equip-
    38  ment,  cranes,  drilling  equipment, rolling stock, train control equip-
    39  ment, communication equipment, traction power equipment,  rolling  stock
    40  prototypes,  rolling  stock frames, rolling stock car shells, batteries,
    41  charging equipment, fuel cells, fueling equipment,  turbines,  nacelles,
    42  blades,  rotors,  generators, motors, hubs, cable, conduit, controllers,
    43  towers, photovoltaic  cells,  solar  panels,  meters,  inverters,  pipe,
    44  tubing, fittings, tanks, flanges, valves, concrete, rebar, brick, aggre-
    45  gate,  concrete block, cement, timber, lumber, tile, and drywall used or
    46  supplied in the performance of the contract or any subcontract  thereto,
    47  shall  be  produced  or  made in whole or substantial part in the United
    48  States, its territories or possessions. In the case of an  iron,  steel,
    49  or  aluminum  product,  all  manufacturing must take place in the United
    50  States, from the initial melting stage through the application of  coat-
    51  ings,  except  metallurgical processes involving the refinement of steel
    52  additives.
    53    (ii) The provisions of subparagraph (i) of this  paragraph  shall  not
    54  apply  in  any  case  or  category  of  cases  in  which the head of the
    55  contracting public entity finds that: (1) applying subparagraph  (i)  of
    56  this  paragraph  would  be  inconsistent  with  the public interest; (2)

        A. 3351--B                         10
 
     1  products are not produced in the United States in sufficient and reason-
     2  ably available quantities and of a satisfactory quality; or  (3)  inclu-
     3  sion of products produced in the United States will increase the cost of
     4  the overall project by more than twenty-five percent. If the head of the
     5  contracting  public  entity  receives  a request for a waiver under this
     6  subdivision, such person shall  make  available  to  the  public  on  an
     7  informal  basis  a copy of the request and information available to such
     8  person concerning the request, and shall allow for informal public input
     9  on the request for at least fifteen days prior to making a finding based
    10  on the request. The head of the contracting public entity shall make the
    11  request and accompanying  information  available  by  electronic  means,
    12  including  on  the  official  public  website  of the public entity. The
    13  provisions of subparagraph (i) of this paragraph  shall  not  apply  for
    14  products purchased prior to the effective date of this article.
    15    (iii)  The head of the contracting public entity may, at the contract-
    16  ing entity's sole discretion, provide for a solicitation  of  a  request
    17  for  proposal,  invitation  for bid, or solicitation of proposal, or any
    18  other method provided for by law or regulation for soliciting a response
    19  from offerors intending to result in a contract pursuant to  this  para-
    20  graph involving a competitive process in which the evaluation of compet-
    21  ing  bids  gives  significant consideration in the evaluation process to
    22  the procurement of equipment and supplies from businesses located in New
    23  York state.
    24    e. Apprenticeship and workforce development utilization: (i)  wherever
    25  possible,  contractors  and subcontractors should be required to partic-
    26  ipate in apprenticeship programs, registered in accordance with  article
    27  twenty-three  of the labor law, in the trades in which they are perform-
    28  ing work; (ii) for industries without apprenticeship programs,  the  use
    29  of  workforce training, preferably in conjunction with a bona fide labor
    30  organization, shall be required; and (iii) encouragement  of  registered
    31  pre-apprenticeship  direct  entry  programs for the recruitment of local
    32  and/or disadvantaged workers.
    33    f. Notwithstanding any provision of law to the contrary, all rights or
    34  benefits, including terms and conditions of employment,  and  protection
    35  of civil service and collective bargaining status of all existing public
    36  employees  shall  be  preserved  and  protected. Nothing in this section
    37  shall result in the: (i) displacement of any currently  employed  worker
    38  or  loss of position (including partial displacement such as a reduction
    39  in the hours of non-overtime work, wages,  or  employment  benefits)  or
    40  result  in  the impairment of existing collective bargaining agreements;
    41  (ii) transfer of existing duties and functions  related  to  maintenance
    42  and  operations  currently performed by existing employees of authorized
    43  entities to a contracting entity; or (iii) transfer of future duties and
    44  functions ordinarily performed by employees of authorized entities to  a
    45  contracting entity.
    46    4.  a.  Any  public  entity  requesting bids or awarding contracts for
    47  renewable energy projects, energy efficiency projects, or other projects
    48  funded by the climate change adaptation cost  recovery  program,  except
    49  for  construction  projects,  shall  require  any  applicant, bidder, or
    50  responder to submit a New York jobs plan as part of its application, bid
    51  or response. The department of environmental conservation, in  consulta-
    52  tion  with the department of labor, shall develop all forms, procedures,
    53  evaluation and scoring criteria, and guidance, necessary for the  imple-
    54  mentation of the New York jobs plan. To the extent feasible, the depart-
    55  ment  of environmental conservation, in consultation with the department

        A. 3351--B                         11
 
     1  of labor, shall consider  the  input  and  recommendations  of  relevant
     2  public entities on the development of the New York jobs plan.
     3    b.  The  New  York  jobs  plan  shall require applicants, bidders, and
     4  responders to provide information on jobs that would result  from  being
     5  awarded  the bid or contract for such projects. At a minimum, this shall
     6  include the following information for nonsupervisory  positions,  broken
     7  down by classification:
     8    (i)  The  number  of  full-time  non-temporary  jobs retained, and the
     9  number to be created.
    10    (ii) The number of positions classified as employees,  as  defined  in
    11  section  seven  hundred forty of the labor law, and positions classified
    12  as independent contractors.
    13    (iii) The number of jobs to be specifically reserved  for  individuals
    14  facing barriers to employment and the number to be reserved for individ-
    15  uals from disadvantaged communities.
    16    (iv) The minimum wages and fringe benefits amounts to be paid.
    17    (v) The proposed amounts for worker training and information about any
    18  existing  apprenticeship  program  registered  with  the department or a
    19  federally recognized state apprenticeship agency that complies with  the
    20  requirements  under  Parts  29 and 30 of title 29, code of federal regu-
    21  lations.
    22    (vi) In the event that a federal authority specifically authorizes use
    23  of a geographic preference or when covered public contracts  are  funded
    24  exclusively  through  state or local funds, the New York jobs plan shall
    25  require information on the number of local jobs to be created.
    26    c. Awarding public entities shall require the same New York jobs  plan
    27  information to be submitted from all known subcontractors at the time of
    28  the solicitation or bid for the project is released.
    29    d.  New  York  jobs plan commitments shall be included in the contract
    30  awarded by the public entity or its contractors as a material term.
    31    e. For non-competitive public contracts awarded  under  this  article,
    32  applicants,  bidders, or responders shall create a New York jobs plan as
    33  set forth in this section.  For  competitive  public  contracts,  public
    34  entities  shall  award  contracts  using  a  competitive  best-value bid
    35  procurement process. The applicants', bidders', or responders' New  York
    36  jobs  plan  shall be scored as a part of the overall application for the
    37  public  contract,  awarding  additional  consideration  to   applicants,
    38  bidders, or responders who do any of the following:
    39    (i)  Have  the  greatest  beneficial  economic impact on the state and
    40  local economies as a result of receiving the public contract,  based  on
    41  the priority criteria outlined in its New York jobs plan.
    42    (ii)  Enhance the state's commitment to energy conservation, pollution
    43  and greenhouse gas emissions reduction, and transportation efficiency.
    44    (iii) Retain the greatest number of full-time, non-temporary employees
    45  compensated at a wage rate for the project jurisdiction  as  established
    46  in  the  living wage calculator published by the Massachusetts Institute
    47  of Technology, using the living wage rate for a household of two working
    48  adults with two children in the jurisdiction of the project.
    49    (iv) Make concrete commitments to  creating  the  greatest  number  of
    50  full-time,  non-temporary  jobs compensating employees at a wage rate at
    51  or above the living wage rate for the  project  jurisdiction  as  estab-
    52  lished  in  the  living  wage  calculator published by the Massachusetts
    53  Institute of Technology, using the living wage rate for a  household  of
    54  two working adults with two children in the jurisdiction of the project.
    55    (v)  Commit  to  at  least ninety percent of the labor on the contract
    56  being performed by workers classified as employees.

        A. 3351--B                         12
 
     1    (vi) Offer targeted training and opportunities for individuals  facing
     2  barriers to employment and workers from disadvantaged communities.
     3    f. The department, in consultation with the department of labor, shall
     4  develop  a  web-based portal to track New York jobs plan commitments and
     5  compliance.
     6    (i) All New York jobs plan commitments and compliance reporting  shall
     7  be viewable by the public, through the web-based portal.
     8    (ii)  Recipients  of  public  contracts  shall, on an annual basis, be
     9  required to upload progress reports on each of the commitments  included
    10  in their New York jobs plan application, for the duration of the covered
    11  public contract.
    12    g. Noncompliance with New York jobs plan commitments would violate the
    13  terms  of  the  public contract. At a minimum these commitments would be
    14  enforceable through standard breach of contract remedies, including  but
    15  not limited to, termination of the public contract.
    16    5.  Nothing  set  forth  in this section shall be construed to impede,
    17  infringe, or diminish the rights and benefits which accrue to  employees
    18  through  bona fide collective bargaining agreements, or otherwise dimin-
    19  ish the integrity of the existing collective bargaining relationship.
    20    6. Nothing set forth in this section shall preclude  a  public  entity
    21  from  setting  additional requirements or standards in addition to those
    22  set forth in this article.
    23    § 4. The state finance law is amended by adding a new section 97-m  to
    24  read as follows:
    25    § 97-m. Climate change adaptation fund. 1. There is hereby established
    26  in  the  custody of the comptroller and the commissioner of taxation and
    27  finance a special revolving fund to be  known  as  the  "climate  change
    28  adaptation fund" for the purpose of receiving moneys through cost recov-
    29  ery  demands  and  issuing funds for qualifying expenditures pursuant to
    30  the climate change adaptation cost recovery program established in arti-
    31  cle seventy-six of the environmental conservation law.
    32    2. No monies shall be expended from the fund for  any  project  except
    33  qualifying  expenditures pursuant to the program, including their opera-
    34  tion and maintenance.
    35    3. Revenues in the fund shall  be  kept  separate  and  shall  not  be
    36  commingled  with  any  other moneys in the custody of the comptroller or
    37  the commissioner of taxation and finance. All deposits of such  revenues
    38  shall,  if required by the comptroller, be secured by obligations of the
    39  United States or of the state having a market value equal at  all  times
    40  to  the  amount  of  such deposits and all banks and trust companies are
    41  authorized to give security for such deposits. Any such revenues in such
    42  fund may, upon the discretion of the comptroller, be invested  in  obli-
    43  gations  in  which  the  comptroller is authorized to invest pursuant to
    44  section ninety-eight-a of this article.
    45    4. All payments of moneys from the fund shall be made on the audit and
    46  warrant of the comptroller.
    47    § 5. Availability of additional remedies. Nothing in this act shall be
    48  deemed to preclude the pursuit of a civil action or other remedy by  any
    49  person.  The  remedies  provided  in  this  act are in addition to those
    50  provided by existing statutory or common law.
    51    § 6. Severability. If any word, phrase, clause,  sentence,  paragraph,
    52  section, or part of this act shall be adjudged by any court of competent
    53  jurisdiction  to  be invalid, such judgment shall not affect, impair, or
    54  invalidate the remainder thereof, but shall be confined in its operation
    55  to the word, phrase, clause, sentence, paragraph, section, or part ther-

        A. 3351--B                         13
 
     1  eof directly involved in the controversy in which  such  judgment  shall
     2  have been rendered.
     3    §  7.  Construction. This act, being necessary for the general health,
     4  safety, and welfare of the people of  this  state,  shall  be  liberally
     5  construed to effect its purpose.
     6    § 8. This act shall take effect immediately.
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