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; and establishes the climate change adaptation fund.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3351A
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
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
SUMMARY OF PROVISIONS:
Section 1: Names the bill the Climate Change Superfund Act. Section 2:
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
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-
9. Requires DEC to conduct an independent evaluation of the program.
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.
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-
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.
2021-22: A.10556/5.9417 - Environmental Conservation / Environmental
FISCAL IMPACT ON THE STATE:
Potential to collect up to $75 billion over 25 years for climate change
adaptive infrastructure projects in the state.
This act shall take effect immediately.
STATE OF NEW YORK
2023-2024 Regular Sessions
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 -- read once and
referred to the Committee on Environmental Conservation -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
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
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-
9 quences of climate change that are irreversible, including rising sea
10 levels, increasing temperatures, extreme weather events, flooding, heat
11 waves, toxic algal blooms and other climate-change-driven threats.
12 Maintaining New York's quality of life into the future, particularly for
13 young people, who will experience greater impacts from climate change
14 over their lifetimes, will be one of the state's greatest challenges
15 over the next three decades. Meeting that challenge will require a
16 shared commitment of purpose, huge investments in new or upgraded
17 infrastructure, and new revenue sources to pay for those investments.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 3351--A 2
1 2. New York has previously adopted programs now in place - the inac-
2 tive hazardous waste disposal site (state superfund) program and the oil
3 spill fund - to remediate environmental damage to lands and waters based
4 on the principle that, where possible, the entities responsible for
5 environmental damage should pay for its cleanup. No similar program
6 exists yet for the pollution of the atmosphere by greenhouse gas buildup
7 as a result of burning fossil fuels.
8 3. Based on decades of research it is now possible to determine with
9 great accuracy the share of greenhouse gases released into the atmos-
10 phere by specific fossil fuel companies over the last 70 years or more,
11 making it possible to assign liability to and require compensation from
12 companies commensurate with their emissions during a given time period.
13 4. It is the intent of the legislature to establish a climate change
14 adaptation cost recovery program that will require companies that have
15 contributed significantly to the buildup of climate change-driving
16 greenhouse gases in the atmosphere to bear a proportionate share of the
17 cost of infrastructure investments and other expenses necessary for
18 comprehensive adaptation to the impacts of climate change in New York
20 5. a. The obligation to pay under the program is based on the fossil
21 fuel companies' historic contribution to the buildup of greenhouse gases
22 that is largely responsible for climate change. The program operates
23 under a standard of strict liability; companies are required to pay into
24 the fund because the use of their products caused the pollution. No
25 finding of wrongdoing is required.
26 b. Nonetheless, the legislature recognizes that the actions of many of
27 the biggest fossil fuel companies have been unconscionable, closely
28 reflecting the strategy of denial, deflection, and delay used by the
29 tobacco industry. In spite of the information provided by their own
30 scientists that the continued burning of fossil fuels would have
31 catastrophic results, these companies hid the truth from the public and
32 actively spread false information that the science of climate change was
33 uncertain when in fact it was beyond controversy. This breach of the
34 public trust was breathtaking in its scope and consequences, and it
35 continues to this day.
36 c. Since 2022, the fossil fuel industry has taken advantage of several
37 overlapping global crises to earn immense profits, charging record high
38 prices while aggressively rejecting any responsibility for the costs of
39 its business activities. While all the profits accrue to the companies,
40 all of the costs of climate change are paid by taxpayers and individ-
41 uals. This is a market failure that needs to be addressed through policy
43 6. Payments by historical polluters into the climate change adaptation
44 cost recovery program would be used for new or upgraded infrastructure
45 needs such as coastal wetlands restoration, storm water drainage system
46 upgrades, energy efficient cooling systems in public and private build-
47 ings, including schools and public housing, support for programs
48 addressing climate-driven public health challenges, and responses to
49 extreme weather events, all of which are necessary to protect the public
50 safety and welfare in the face of the growing impacts of climate change.
51 The cost to the state of climate adaptation investments through 2050
52 will easily exceed $150 billion, far more than the $75 billion being
53 assessed on the fossil fuel industry. At least 35%, with a goal of 40%
54 or more of the overall benefits of program spending would go to climate
55 change adaptive infrastructure projects that directly benefit disadvan-
56 taged communities.
A. 3351--A 3
1 7. This act is not intended to intrude on the authority of the federal
2 government in areas where it has preempted the right of the states to
3 legislate. This act is remedial in nature, seeking compensation for
4 damages resulting from the past actions of polluters.
5 § 3. The environmental conservation law is amended by adding a new
6 article 76 to read as follows:
7 ARTICLE 76
8 CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM
9 Section 76-0101. Definitions.
10 76-0103. The climate change adaptation cost recovery program.
11 76-0105. Labor and job standards and worker protection.
12 § 76-0101. Definitions.
13 For the purposes of this article the following terms shall have the
14 following meanings:
15 1. "Applicable payment date" means September thirtieth of the second
16 calendar year following the year in which this article is enacted into
18 2. "Climate change adaptive infrastructure project" means an infras-
19 tructure project designed to avoid, moderate, repair, or adapt to nega-
20 tive impacts caused by climate change, and to assist communities, house-
21 holds, and businesses in preparing for future climate change-driven
22 disruptions. Such projects include but are not limited to restoring
23 coastal wetlands and developing other nature-based solutions and coastal
24 protections; upgrading storm water drainage systems; making defensive
25 upgrades to roads, bridges, subways, and transit systems; preparing for
26 and recovering from hurricanes and other extreme weather events; under-
27 taking preventive health care programs and providing medical care to
28 treat illness or injury caused by the effects of climate change; relo-
29 cating, elevating, or retrofitting sewage treatment plants vulnerable to
30 flooding; installing energy efficient cooling systems and other weather-
31 ization and energy efficiency upgrades and retrofits in public and
32 private buildings, including schools and public housing; upgrading parts
33 of the electrical grid to increase stability and resilience, including
34 supporting the creation of self-sufficient clean energy microgrids;
35 addressing urban heat island effects through green spaces, urban fores-
36 try, and other interventions; and responding to toxic algae blooms, loss
37 of agricultural topsoil, and other climate-driven ecosystem threats to
38 forests, farms, fisheries, and food systems.
39 3. "Coal" shall have the same definition as in section 1-103 of the
40 energy law.
41 4. "Controlled group" means two or more entities treated as a single
42 employer under section 52(a) or (b) or section 414(m) or (o) of the
43 Internal Revenue Code. In applying subsections (a) and (b) of section
44 52, section 1563 of the Internal Revenue Code shall be applied without
45 regard to subsection(b)(2)(C). For purposes of this article, entities in
46 a controlled group are treated as a single entity for purposes of meet-
47 ing the definition of responsible party and are jointly and severally
48 liable for payment of any cost recovery demand owed by any entity in the
49 controlled group.
50 5. "Cost recovery demand" means a charge asserted against a responsi-
51 ble party for cost recovery payments under the program for payment to
52 the fund.
53 6. "Covered greenhouse gas emissions" means, with respect to any enti-
54 ty, the total quantity of greenhouse gases released into the atmosphere
55 during the covered period, expressed in metric tons of carbon dioxide
56 equivalent, as defined in section 75-0101 of this chapter, including but
A. 3351--A 4
1 not limited to releases of greenhouse gases resulting from the
2 extraction, storage, production, refinement, transport, manufacture,
3 distribution, sale, and use of fossil fuels or petroleum products
4 extracted, produced, refined, or sold by such entity.
5 7. "Covered period" means the period that began January first, two
6 thousand and ended on December thirty-first, two thousand eighteen.
7 8. "Crude oil" means oil or petroleum of any kind and in any form,
8 including bitumen, oil sands, heavy oil, conventional and unconventional
9 oil, shale oil, natural gas liquids, condensates, and related fossil
11 9. "Entity" means any individual, trustee, agent, partnership, associ-
12 ation, corporation, company, municipality, political subdivision, or
13 other legal organization, including a foreign nation, that holds or held
14 an ownership interest in a fossil fuel business during the covered peri-
16 10. "Fossil fuel" shall have the same definition as in section 1-103
17 of the energy law.
18 11. "Fossil fuel business" means a business engaging in the extraction
19 of fossil fuels or the refining of petroleum products.
20 12. "Fuel gases" shall have the same definition as in section 1-103 of
21 the energy law.
22 13. "Fund" means the climate change adaptation fund established pursu-
23 ant to section ninety-seven-m of the state finance law.
24 14. "Greenhouse gas" shall have the same definition as in section
25 75-0101 of this chapter.
26 15. "Nature-based solutions" shall mean projects that utilize or mimic
27 nature or natural processes and functions and that may also offer envi-
28 ronmental, economic, and social benefits, while increasing resilience.
29 Nature-based solutions include both green and natural infrastructure.
30 16. "Notice of cost recovery demand" means the written communication
31 informing a responsible party of the amount of the cost recovery demand
32 payable to the fund.
33 17. "Petroleum products" shall have the same definition as in section
34 1-103 of the energy law.
35 18. "Program" means the climate change adaptation cost recovery
36 program established under section 76-0103 of this article.
37 19. "Qualifying expenditure" means an authorized payment from the fund
38 in support of a climate change adaptive infrastructure project, includ-
39 ing its operation and maintenance, as defined by the department.
40 20. "Responsible party" means any entity (or a successor in interest
41 to such entity described herein), which, during any part of the covered
42 period, was engaged in the trade or business of extracting fossil fuel
43 or refining crude oil and is determined by the department to be respon-
44 sible for more than one billion tons of covered greenhouse gas emis-
45 sions. The term responsible party shall not include any person who lacks
46 sufficient connection with the state to satisfy the nexus requirements
47 of the United States Constitution.
48 § 76-0103. The climate change adaptation cost recovery program.
49 1. There is hereby established a climate change adaptation cost recov-
50 ery program administered by the department.
51 2. The purposes of the program shall be the following:
52 a. To secure compensatory payments from responsible parties based on a
53 standard of strict liability to provide a source of revenue for climate
54 change adaptive infrastructure projects within the state.
55 b. To determine proportional liability of responsible parties pursuant
56 to subdivision three of this section;
A. 3351--A 5
1 c. To impose cost recovery demands on responsible parties and issue
2 notices of cost recovery demands;
3 d. To accept and collect payment from responsible parties;
4 e. To identify climate change adaptive infrastructure projects;
5 f. To disperse funds to climate change adaptive infrastructure
6 projects; and
7 g. To allocate funds in such a way as to achieve a goal that at least
8 forty percent of the qualified expenditures from the program, but not
9 less than thirty-five percent of such expenditures, shall go to climate
10 change adaptive infrastructure projects that benefit disadvantaged
11 communities as defined in section 75-0101 of this chapter.
12 3. a. A responsible party shall be strictly liable, without regard to
13 fault, for a share of the costs of climate change adaptive infrastruc-
14 ture projects, including their operation and maintenance, supported by
15 the fund.
16 b. With respect to each responsible party, the cost recovery demand
17 shall be equal to an amount that bears the same ratio to seventy-five
18 billion dollars as the responsible party's applicable share of covered
19 greenhouse gas emissions bears to the aggregate applicable shares of
20 covered greenhouse gas emissions of all responsible parties.
21 c. The applicable share of covered greenhouse gas emissions taken into
22 account under this section for any responsible party shall be the amount
23 by which the covered greenhouse gas emissions attributable to such
24 responsible party exceeds one billion metric tons.
25 d. Where an entity owns a minority interest in another entity of ten
26 percent or more, the calculation of the entity's applicable share of
27 greenhouse gas emissions taken into account under this section shall
28 include the applicable share of greenhouse gas emissions taken into
29 account under this section by the entity in which the responsible party
30 holds a minority interest, multiplied by the percentage of the minority
31 interest held.
32 e. In determining the amount of greenhouse gas emissions attributable
33 to any entity, an amount equivalent to nine hundred forty-two and one-
34 half metric tons of carbon dioxide equivalent shall be treated as
35 released for every million pounds of coal attributable to such entity;
36 an amount equivalent to four hundred thirty-two thousand one hundred
37 eighty metric tons of carbon dioxide equivalent shall be treated as
38 released for every million barrels of crude oil attributable to such
39 entity; and an amount equivalent to fifty-three thousand four hundred
40 forty metric tons of carbon dioxide equivalent shall be treated as
41 released for every million cubic feet of fuel gases attributable to such
43 f. The commissioner may adjust the cost recovery demand amount of a
44 responsible party refining petroleum products (or who is a successor in
45 interest to such an entity) if such responsible party establishes to the
46 satisfaction of the commissioner that a portion of the cost recovery
47 demand amount was attributable to the refining of crude oil extracted by
48 another responsible party (or who is a successor in interest to such an
49 entity) that accounted for such crude oil in determining its cost recov-
50 ery demand amount.
51 g. Payment of a cost recovery demand shall be made in full on the
52 applicable payment date unless a responsible party elects to pay in
53 installments pursuant to paragraph h of this subdivision.
54 h. A responsible party may elect to pay the cost recovery demand
55 amount in twenty-four annual installments, eight percent of the total
56 due in the first installment and four percent of the total due in each
A. 3351--A 6
1 of the following twenty-three installments. If an election is made under
2 this paragraph, the first installment shall be paid on the applicable
3 payment date and each subsequent installment shall be paid on the same
4 date as the applicable payment date in each succeeding year.
5 i. If there is any addition to the original amount of the cost recov-
6 ery demand for failure to timely pay any installment required under this
7 subdivision, a liquidation or sale of substantially all the assets of
8 the responsible party (including in a proceeding under U.S. Code: Title
9 11 or similar case), a cessation of business by the responsible party,
10 or any similar circumstance, then the unpaid balance of all remaining
11 installments shall be due on the date of such event (or in the case of a
12 proceeding under U.S. Code: Title 11 or similar case, on the day before
13 the petition is filed). The preceding sentence shall not apply to the
14 sale of substantially all of the assets of a responsible party to a
15 buyer if such buyer enters into an agreement with the department under
16 which such buyer is liable for the remaining installments due under this
17 subdivision in the same manner as if such buyer were the responsible
19 4. a. Within one year of the effective date of this article, the
20 department shall promulgate such regulations as are necessary to carry
21 out this article, including but not limited to:
22 i. adopting methodologies using the best available science to deter-
23 mine responsible parties and their applicable share of covered green-
24 house gas emissions consistent with the provisions of this article;
25 ii. registering entities that are responsible parties under the
27 iii. issuing notices of cost recovery demand to responsible parties
28 informing them of the cost recovery demand amount; how and where cost
29 recovery demands can be paid; the potential consequences of nonpayment
30 and late payment; and information regarding their rights to contest an
32 iv. accepting payments from, pursuing collection efforts against, and
33 negotiating settlements with responsible parties; and
34 v. adopting procedures for identifying and selecting climate change
35 adaptive infrastructure projects eligible to receive qualifying expendi-
36 tures, including legislative budget appropriations, issuance of requests
37 for proposals from localities and not-for-profit and community organiza-
38 tions, grants to private individuals, or other methods as determined by
39 the department, and for dispersing moneys from the fund for qualifying
40 expenditures. When considering projects intended to stabilize tidal
41 shorelines, the department shall encourage the use of nature-based
42 solutions. Total qualifying expenditures shall be allocated in such a
43 way as to achieve a goal that at least forty percent of the qualified
44 expenditures from the program, but not less than thirty-five percent of
45 such expenditures, shall go to climate change adaptive infrastructure
46 projects that benefit disadvantaged communities as defined in section
47 75-0101 of this chapter.
48 b. The department shall hold at least two public hearings, one in-per-
49 son and one virtual, on proposed regulations, with a minimum of thirty
50 days' public notice in compliance with the provisions of article seven
51 of the public officers law.
52 5. Within two years of the effective date of this article, the depart-
53 ment shall complete a statewide climate change adaptation master plan
54 for the purpose of guiding the dispersal of funds in a timely, effi-
55 cient, and equitable manner to all regions of the state in accordance
A. 3351--A 7
1 with the provisions of this chapter. In completing such plan, the
2 department shall:
3 a. collaborate with the department of state, empire state development,
4 the department of agriculture and markets, the New York state energy
5 research and development authority, the department of public service,
6 and the New York independent systems operator;
7 b. assess the adaptation needs and vulnerabilities of various areas
8 vital to the state's economy, normal functioning, and the health and
9 well-being of New Yorkers, including but not limited to: agriculture,
10 biodiversity, ecosystem services, education, finance, healthcare, manu-
11 facturing, housing and real estate, retail, tourism (including state and
12 municipal parks), transportation, and municipal and local government.
13 c. identify major potential, proposed, and ongoing climate change
14 adaptive infrastructure projects throughout the state;
15 d. identify opportunities for alignment with existing federal, state,
16 and local funding streams;
17 e. consult with stakeholders, including local governments, businesses,
18 environmental advocates, relevant subject area experts, and represen-
19 tatives of disadvantaged communities; and
20 f. provide opportunities for public engagement in all regions of the
22 6. The department, the department of taxation and finance, and the
23 attorney general are hereby authorized to enforce the provisions of this
25 7. The department or the department of taxation and finance shall
26 provide an opportunity to be heard to any responsible parties that seek
27 to contest a cost recovery demand. Determinations made in favor of a
28 petitioner after such hearing shall be final and conclusive. A determi-
29 nation in favor of the state may be appealed under article seventy-eight
30 of the civil practice law and rules.
31 8. Moneys received from cost recovery demands shall be deposited in
32 the climate change adaptation fund established pursuant to section nine-
33 ty-seven-m of the state finance law.
34 9. a. The department shall conduct an independent evaluation of the
35 climate change adaptation cost recovery program. The purpose of this
36 evaluation is to determine the effectiveness of the program in achieving
37 its purposes as defined in subdivision two of this section.
38 b. Such evaluation shall be provided to the governor, the temporary
39 president of the senate and the speaker of the assembly on or before
40 January first of the second calendar year following the year in which
41 this article is enacted into law, and annually on or before September
42 thirtieth thereafter.
43 c. Any entity contracted by the department to conduct such evaluation
44 shall receive prompt payment of all moneys due upon completion of such
46 § 76-0105. Labor and job standards and worker protection.
47 1. All public entities involved in implementing projects funded
48 through the climate change adaptation cost recovery program shall assess
49 and implement strategies to increase employment opportunities and
50 improve job quality. Within one hundred twenty days of the effective
51 date of this section, the governor shall publish a report, accessible on
52 the state's website, which provides:
53 a. steps that will be taken to ensure compliance with this section,
54 including the department or office, or combination thereof, charged with
55 implementation of the provisions of this section;
A. 3351--A 8
1 b. regulations necessary to ensure the prioritization of the statewide
2 goal of creating good jobs and increasing employment opportunities; and
3 c. steps that will be taken with all public entities, including local
4 and county level governments, to implement a system to track compliance,
5 accept reports of non-compliance for enforcement action, and report
6 annually on the adoption of these standards to the legislature starting
7 one year from the effective date of this section.
8 2. For purposes of this section, "public entity" shall include the
9 state and all of its political subdivisions, including but not limited
10 to counties, municipalities, agencies, authorities, public benefit
11 corporations, public trusts, and local development corporations as
12 defined in subdivision eight of section eighteen hundred one of the
13 public authorities law or section fourteen hundred eleven of the not-
14 for-profit corporation law, a municipal corporation as defined in
15 section one hundred nineteen-n of the general municipal law, an indus-
16 trial development agency formed pursuant to article eighteen-A of the
17 general municipal law or industrial development authorities formed
18 pursuant to article eight of the public authorities law, and any state,
19 local or interstate or international authorities as defined in section
20 two of the public authorities law; and shall include any trust created
21 by any such entities.
22 3. In considering and issuing permits, licenses, regulations,
23 contracts and other administrative approvals and decisions necessary for
24 implementation of projects funded in whole, or in part, through the
25 climate change adaptation cost recovery program, all public entities
26 shall apply the following standards:
27 a. For any construction work, the payment of no less than prevailing
28 wages for all employees of any contractors and subcontractors, consist-
29 ent with sections two hundred twenty, two hundred twenty-a, two hundred
30 twenty-b, two hundred twenty-i, two hundred twenty-three, and two
31 hundred twenty-four-b of the labor law, and building services, consist-
32 ent with article nine of the labor law; where a recipient of financial
33 assistance contracts building service work or operations and maintenance
34 work to a building service contractor, the contractor is held to the
35 same obligations with respect to prevailing wages as the recipient. The
36 recipient must include terms establishing this obligation within any
37 contract signed with a contractor.
38 b. (i) Any public entity receiving at least five million dollars from
39 funds allocated pursuant to the climate change adaptation cost recovery
40 program for a project which involves the construction, reconstruction,
41 alteration, maintenance, moving, demolition, excavation, development or
42 other improvement of any building, structure or land, shall be subject
43 to section two hundred twenty-two of the labor law.
44 (ii) Any privately owned project receiving funds allocated pursuant to
45 the climate change adaptation cost recovery program which utilizes a
46 project labor agreement on such project shall not be subject to article
47 eight of the labor law.
48 c. The inclusion of contract language requiring contractors to estab-
49 lish labor harmony policies. The public entity may require a private
50 owner, or a third party acting on such owner's behalf, as a condition of
51 receiving funds pursuant to the climate change adaptation cost recovery
52 program, to stipulate to the public entity that it will enter into a
53 labor peace agreement with at least one bona fide labor organization
54 either where such bona fide labor organization is actively representing
55 employees in such job-type or, upon notice, by a bona fide labor organ-
56 ization that is attempting to represent employees in such job-type. For
A. 3351--A 9
1 purposes of this section "labor peace agreement" means an agreement
2 between an entity and labor organization that, at a minimum, protects
3 the state's proprietary interests by prohibiting labor organizations and
4 members from engaging in work stoppages, boycotts, and any other econom-
5 ic interference with the relevant project or program.
6 d. (i) The inclusion of contract language with a provision that the
7 iron, steel, aluminum, glass, copper, manufactured products, and
8 construction products, including without limitation, vehicles, omnibus-
9 es, school buses, trucks, construction equipment, earth moving equip-
10 ment, cranes, drilling equipment, rolling stock, train control equip-
11 ment, communication equipment, traction power equipment, rolling stock
12 prototypes, rolling stock frames, rolling stock car shells, batteries,
13 charging equipment, fuel cells, fueling equipment, turbines, nacelles,
14 blades, rotors, generators, motors, hubs, cable, conduit, controllers,
15 towers, photovoltaic cells, solar panels, meters, inverters, pipe,
16 tubing, fittings, tanks, flanges, valves, concrete, rebar, brick, aggre-
17 gate, concrete block, cement, timber, lumber, tile, and drywall used or
18 supplied in the performance of the contract or any subcontract thereto,
19 shall be produced or made in whole or substantial part in the United
20 States, its territories or possessions. In the case of an iron, steel,
21 or aluminum product, all manufacturing must take place in the United
22 States, from the initial melting stage through the application of coat-
23 ings, except metallurgical processes involving the refinement of steel
25 (ii) The provisions of subparagraph (i) of this paragraph shall not
26 apply in any case or category of cases in which the head of the
27 contracting public entity finds that: (1) applying subparagraph (i) of
28 this paragraph would be inconsistent with the public interest; (2)
29 products are not produced in the United States in sufficient and reason-
30 ably available quantities and of a satisfactory quality; or (3) inclu-
31 sion of products produced in the United States will increase the cost of
32 the overall project by more than twenty-five percent. If the head of the
33 contracting public entity receives a request for a waiver under this
34 subdivision, he or she shall make available to the public on an informal
35 basis a copy of the request and information available to him or her
36 concerning the request, and shall allow for informal public input on the
37 request for at least fifteen days prior to making a finding based on the
38 request. The head of the contracting public entity shall make the
39 request and accompanying information available by electronic means,
40 including on the official public website of the public entity. The
41 provisions of subparagraph (i) of this paragraph shall not apply for
42 products purchased prior to the effective date of this article.
43 (iii) The head of the contracting public entity may, at his or her
44 sole discretion, provide for a solicitation of a request for proposal,
45 invitation for bid, or solicitation of proposal, or any other method
46 provided for by law or regulation for soliciting a response from offe-
47 rors intending to result in a contract pursuant to this paragraph
48 involving a competitive process in which the evaluation of competing
49 bids gives significant consideration in the evaluation process to the
50 procurement of equipment and supplies from businesses located in New
51 York state.
52 e. Apprenticeship and workforce development utilization: (i) wherever
53 possible, contractors and subcontractors should be required to partic-
54 ipate in apprenticeship programs, registered in accordance with article
55 twenty-three of the labor law, in the trades in which they are perform-
56 ing work; (ii) for industries without apprenticeship programs, the use
A. 3351--A 10
1 of workforce training, preferably in conjunction with a bona fide labor
2 organization, shall be required; and (iii) encouragement of registered
3 pre-apprenticeship direct entry programs for the recruitment of local
4 and/or disadvantaged workers.
5 f. Notwithstanding any provision of law to the contrary, all rights or
6 benefits, including terms and conditions of employment, and protection
7 of civil service and collective bargaining status of all existing public
8 employees shall be preserved and protected. Nothing in this section
9 shall result in the: (i) displacement of any currently employed worker
10 or loss of position (including partial displacement such as a reduction
11 in the hours of non-overtime work, wages, or employment benefits) or
12 result in the impairment of existing collective bargaining agreements;
13 (ii) transfer of existing duties and functions related to maintenance
14 and operations currently performed by existing employees of authorized
15 entities to a contracting entity; or (iii) transfer of future duties and
16 functions ordinarily performed by employees of authorized entities to a
17 contracting entity.
18 4. a. Any public entity requesting bids or awarding contracts for
19 renewable energy projects, energy efficiency projects, or other projects
20 funded by the climate change adaptation cost recovery program, except
21 for construction projects, shall require any applicant, bidder, or
22 responder to submit a New York jobs plan as part of its application, bid
23 or response. The department of environmental conservation, in consulta-
24 tion with the department of labor, shall develop all forms, procedures,
25 evaluation and scoring criteria, and guidance, necessary for the imple-
26 mentation of the New York jobs plan. To the extent feasible, the depart-
27 ment of environmental conservation, in consultation with the department
28 of labor, shall consider the input and recommendations of relevant
29 public entities on the development of the New York jobs plan.
30 b. The New York jobs plan shall require applicants, bidders, and
31 responders to provide information on jobs that would result from being
32 awarded the bid or contract for such projects. At a minimum, this shall
33 include the following information for nonsupervisory positions, broken
34 down by classification:
35 (i) The number of full-time non-temporary jobs retained, and the
36 number to be created.
37 (ii) The number of positions classified as employees, as defined in
38 section seven hundred forty of the labor law, and positions classified
39 as independent contractors.
40 (iii) The number of jobs to be specifically reserved for individuals
41 facing barriers to employment and the number to be reserved for individ-
42 uals from disadvantaged communities.
43 (iv) The minimum wages and fringe benefits amounts to be paid.
44 (v) The proposed amounts for worker training and information about any
45 existing apprenticeship program registered with the department or a
46 federally recognized state apprenticeship agency that complies with the
47 requirements under Parts 29 and 30 of title 29, code of federal regu-
49 (vi) In the event that a federal authority specifically authorizes use
50 of a geographic preference or when covered public contracts are funded
51 exclusively through state or local funds, the New York jobs plan shall
52 require information on the number of local jobs to be created.
53 c. Awarding public entities shall require the same New York jobs plan
54 information to be submitted from all known subcontractors at the time of
55 the solicitation or bid for the project is released.
A. 3351--A 11
1 d. New York jobs plan commitments shall be included in the contract
2 awarded by the public entity or its contractors as a material term.
3 e. For non-competitive public contracts awarded under this article,
4 applicants, bidders, or responders shall create a New York jobs plan as
5 set forth in this section. For competitive public contracts, public
6 entities shall award contracts using a competitive best-value bid
7 procurement process. The applicants', bidders', or responders' New York
8 jobs plan shall be scored as a part of the overall application for the
9 public contract, awarding additional consideration to applicants,
10 bidders, or responders who do any of the following:
11 (i) Have the greatest beneficial economic impact on the state and
12 local economies as a result of receiving the public contract, based on
13 the priority criteria outlined in its New York jobs plan.
14 (ii) Enhance the state's commitment to energy conservation, pollution
15 and greenhouse gas emissions reduction, and transportation efficiency.
16 (iii) Retain the greatest number of full-time, non-temporary employees
17 compensated at a wage rate for the project jurisdiction as established
18 in the living wage calculator published by the Massachusetts Institute
19 of Technology, using the living wage rate for a household of two working
20 adults with two children in the jurisdiction of the project.
21 (iv) Make concrete commitments to creating the greatest number of
22 full-time, non-temporary jobs compensating employees at a wage rate at
23 or above the living wage rate for the project jurisdiction as estab-
24 lished in the living wage calculator published by the Massachusetts
25 Institute of Technology, using the living wage rate for a household of
26 two working adults with two children in the jurisdiction of the project.
27 (v) Commit to at least ninety percent of the labor on the contract
28 being performed by workers classified as employees.
29 (vi) Offer targeted training and opportunities for individuals facing
30 barriers to employment and workers from disadvantaged communities.
31 f. The department, in consultation with the department of labor, shall
32 develop a web-based portal to track New York jobs plan commitments and
34 (i) All New York jobs plan commitments and compliance reporting shall
35 be viewable by the public, through the web-based portal.
36 (ii) Recipients of public contracts shall, on an annual basis, be
37 required to upload progress reports on each of the commitments included
38 in their New York jobs plan application, for the duration of the covered
39 public contract.
40 g. Noncompliance with New York jobs plan commitments would violate the
41 terms of the public contract. At a minimum these commitments would be
42 enforceable through standard breach of contract remedies, including but
43 not limited to, termination of the public contract.
44 5. Nothing set forth in this section shall be construed to impede,
45 infringe, or diminish the rights and benefits which accrue to employees
46 through bona fide collective bargaining agreements, or otherwise dimin-
47 ish the integrity of the existing collective bargaining relationship.
48 6. Nothing set forth in this section shall preclude a public entity
49 from setting additional requirements or standards in addition to those
50 set forth in this article.
51 § 4. The state finance law is amended by adding a new section 97-m to
52 read as follows:
53 § 97-m. Climate change adaptation fund. 1. There is hereby established
54 in the custody of the comptroller and the commissioner of taxation and
55 finance a special revolving fund to be known as the "climate change
56 adaptation fund" for the purpose of receiving moneys through cost recov-
A. 3351--A 12
1 ery demands and issuing funds for qualifying expenditures pursuant to
2 the climate change adaptation cost recovery program established in arti-
3 cle seventy-six of the environmental conservation law.
4 2. No monies shall be expended from the fund for any project except
5 qualifying expenditures pursuant to the program, including their opera-
6 tion and maintenance, as well as reasonable costs incurred by the
7 department of environmental conservation for administering the program.
8 3. Revenues in the fund shall be kept separate and shall not be
9 commingled with any other moneys in the custody of the comptroller or
10 the commissioner of taxation and finance. All deposits of such revenues
11 shall, if required by the comptroller, be secured by obligations of the
12 United States or of the state having a market value equal at all times
13 to the amount of such deposits and all banks and trust companies are
14 authorized to give security for such deposits. Any such revenues in such
15 fund may, upon the discretion of the comptroller, be invested in obli-
16 gations in which the comptroller is authorized to invest pursuant to
17 section ninety-eight-a of this article.
18 4. All payments of moneys from the fund shall be made on the audit and
19 warrant of the comptroller.
20 § 5. Availability of additional remedies. Nothing in this act shall be
21 deemed to preclude the pursuit of a civil action or other remedy by any
22 person. The remedies provided in this act are in addition to those
23 provided by existing statutory or common law.
24 § 6. Severability. If any word, phrase, clause, sentence, paragraph,
25 section, or part of this act shall be adjudged by any court of competent
26 jurisdiction to be invalid, such judgment shall not affect, impair, or
27 invalidate the remainder thereof, but shall be confined in its operation
28 to the word, phrase, clause, sentence, paragraph, section, or part ther-
29 eof directly involved in the controversy in which such judgment shall
30 have been rendered.
31 § 7. Construction. This act, being necessary for the general health,
32 safety, and welfare of the people of this state, shall be liberally
33 construed to effect its purpose.
34 § 8. This act shall take effect immediately.