S02129 Summary:

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.
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S02129 Actions:

05/15/2023PRINT NUMBER 2129A
06/07/2023referred to environmental conservation
01/03/2024died in assembly
01/03/2024returned to senate
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S02129 Committee Votes:

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S02129 Floor Votes:

There are no votes for this bill in this legislative session.
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S02129 Memo:

Memo not available
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S02129 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                    IN SENATE
                                    January 18, 2023
        Introduced  by  Sens.  KRUEGER,  ADDABBO,  CLEARE,  FERNANDEZ, GIANARIS,
          STAVISKY -- read twice and ordered printed, and  when  printed  to  be
          committed  to  the Committee on Environmental Conservation -- reported
          favorably from said  committee  and  committed  to  the  Committee  on
          Finance  --  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
     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-
     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.

        S. 2129--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
    19  state.
    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
    42  change.
    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.

        S. 2129--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
     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
    17  law.
    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

        S. 2129--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
    10  fuels.
    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-
    15  od.
    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;

        S. 2129--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
    42  entity.
    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

        S. 2129--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
    18  party.
    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
    26  program;
    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
    31  assessment;
    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

        S. 2129--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
    21  state.
    22    6.  The  department,  the  department of taxation and finance, and the
    23  attorney general are hereby authorized to enforce the provisions of this
    24  article.
    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
    45  evaluation.
    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;

        S. 2129--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

        S. 2129--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
    24  additives.
    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

        S. 2129--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-
    48  lations.
    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.

        S. 2129--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
    33  compliance.
    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-

        S. 2129--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.
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