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S02129 Summary:

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S02129 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2129--B
 
                               2023-2024 Regular Sessions
 
                    IN SENATE
 
                                    January 18, 2023
                                       ___________
 
        Introduced  by Sens. KRUEGER, ADDABBO, BRESLIN, BRISPORT, BROUK, CLEARE,
          FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY,  HOYLMAN-
          SIGAL,  JACKSON,  KAVANAGH,  KENNEDY,  LIU, MAY, MYRIE, PARKER, RAMOS,
          RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, STAVISKY, WEBB  --  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 -- recommitted to  the  Committee  on  Environmental
          Conservation  in  accordance  with  Senate  Rule 6, sec. 8 -- 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
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02710-12-4
        S. 2129--B                          2
 
     1  young  people,  who  will experience greater impacts from climate change
     2  over their lifetimes, will be one of  the  state's  greatest  challenges
     3  over  the  next  three  decades.  Meeting  that challenge will require a
     4  shared  commitment  of  purpose,  huge  investments  in  new or upgraded
     5  infrastructure, and new revenue sources to pay for those investments.
     6    2. New York has previously adopted programs now in place -  the  inac-
     7  tive hazardous waste disposal site (state superfund) program and the oil
     8  spill fund - to remediate environmental damage to lands and waters based
     9  on  the  principle  that,  where  possible, the entities responsible for
    10  environmental damage should pay for  its  cleanup.  No  similar  program
    11  exists yet for the pollution of the atmosphere by greenhouse gas buildup
    12  as a result of burning fossil fuels.
    13    3.  Based  on decades of research it is now possible to determine with
    14  great accuracy the share of greenhouse gases released  into  the  atmos-
    15  phere  by specific fossil fuel companies over the last 70 years or more,
    16  making it possible to assign liability to and require compensation  from
    17  companies commensurate with their emissions during a given time period.
    18    4.  It  is the intent of the legislature to establish a climate change
    19  adaptation cost recovery program that will require companies  that  have
    20  contributed  significantly  to  the  buildup  of  climate change-driving
    21  greenhouse gases in the atmosphere to bear a proportionate share of  the
    22  cost  of  infrastructure  investments  and  other expenses necessary for
    23  comprehensive adaptation to the impacts of climate change  in  New  York
    24  state.
    25    5. The obligation to pay under the program is based on the fossil fuel
    26  companies' historic contribution to the buildup of greenhouse gases that
    27  is  largely responsible for climate change. The program operates under a
    28  standard of strict liability; companies are required  to  pay  into  the
    29  fund  because the use of their products caused the pollution. No finding
    30  of wrongdoing is required.
    31    6. a.  Payments by historical polluters into the climate change  adap-
    32  tation  cost  recovery program would be used for new or upgraded infras-
    33  tructure needs such as coastal wetlands restoration, storm water  drain-
    34  age  system  upgrades,  energy  efficient  cooling systems in public and
    35  private buildings, including schools and  public  housing,  support  for
    36  programs   addressing   climate-driven  public  health  challenges,  and
    37  responses to extreme weather events,  all  of  which  are  necessary  to
    38  protect the public safety and welfare in the face of the growing impacts
    39  of climate change.
    40    b.  The  cost  to  the state of climate adaptation investments through
    41  2050 will easily reach several hundred  billion  dollars,  based  on  an
    42  array  of  estimates for projects impacting different regions across the
    43  state, far more than the $75 billion being assessed on the  fossil  fuel
    44  industry.    For example, upgrading New York City's sewer system to deal
    45  with regularly-occurring large rain events is estimated to  cost  around
    46  $100  billion;  a single project proposed by the Army Corps of Engineers
    47  to protect New York City from storm-driven flooding is estimated to cost
    48  $52 billion; protecting Long Island from extreme weather is estimated to
    49  cost at least $75-$100 billion; a recent  study  from  the  State  Comp-
    50  troller  found  that  from  2018  to  2028, 55 percent of New York State
    51  localities' municipal spending outside of New York City was or  will  be
    52  related  to  climate change and that in fiscal year 2023-2024 alone, New
    53  York City planned to spend $829 million on projects dedicated exclusive-
    54  ly to adaptation and resilience, with  an  additional  $1.3  billion  on
    55  projects  that  are  partially  for these purposes. These are only a few
        S. 2129--B                          3
 
     1  examples of the numerous projects that are now or will  soon  be  needed
     2  across the state.
     3    c. The total assessment rate of $3 billion dollars per year represents
     4  a  small  percentage  of  the  extraordinary  cost to New York State for
     5  repairing from and preparing for climate  change-driven  extreme  events
     6  over  the  next 25 years, and is designed to have a meaningful impact on
     7  the burden borne by New York  State  taxpayers  for  climate  adaptation
     8  while being sufficiently limited so as to not impose a punitive negative
     9  impact  on  an industry in which just the three largest domestic oil and
    10  gas producers made a combined $85.6 billion in profits in  2023.  Recent
    11  science  has determined that the largest one hundred fossil fuel produc-
    12  ing companies are responsible for more than 70% of global greenhouse gas
    13  emissions since 1988, and therefore bear a much higher share of  respon-
    14  sibility for climate damage to New York State than is represented by the
    15  $75 billion being assessed them.
    16    d. At least 35 percent, with a goal of 40 percent or more of the over-
    17  all  benefits  of  program  spending would go to climate change adaptive
    18  infrastructure projects that directly benefit disadvantaged communities.
    19    7.  A covered period of 2000-2018 has been selected. Over  70  percent
    20  of  the total increase in greenhouse gas concentrations since the Indus-
    21  trial Revolution has occurred since 1950, with a marked increase in  the
    22  rate  of  emissions  after the year 2000. By 2000 the science of climate
    23  change was well established, and no  reasonable  corporate  actor  could
    24  have  failed  to anticipate regulatory action to address its impacts. In
    25  addition, the data necessary to attribute proportional responsibility is
    26  very robust in the covered period.
    27    8.  This act is not intended to intrude on the authority of the feder-
    28  al government in areas where it has preempted the right of the states to
    29  legislate. This act is remedial  in  nature,  seeking  compensation  for
    30  damages resulting from the past actions of polluters.
    31    §  3.  The  environmental  conservation law is amended by adding a new
    32  article 76 to read as follows:
    33                                 ARTICLE 76
    34               CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM
    35  Section 76-0101. Definitions.
    36          76-0103. The climate change adaptation cost recovery program.
    37          76-0105. Labor and job standards and worker protection.
    38  § 76-0101. Definitions.
    39    For the purposes of this article the following terms  shall  have  the
    40  following meanings:
    41    1.  "Applicable  payment date" means September thirtieth of the second
    42  calendar year following the year in which this article is  enacted  into
    43  law.
    44    2.  "Climate  change adaptive infrastructure project" means an infras-
    45  tructure project designed to avoid, moderate, repair, or adapt to  nega-
    46  tive impacts caused by climate change, and to assist communities, house-
    47  holds,  and  businesses  in  preparing  for future climate change-driven
    48  disruptions. Such projects include but  are  not  limited  to  restoring
    49  coastal wetlands and developing other nature-based solutions and coastal
    50  protections;  upgrading  storm  water drainage systems; making defensive
    51  upgrades to roads, bridges, subways, and transit systems; preparing  for
    52  and  recovering from hurricanes and other extreme weather events; under-
    53  taking preventive health care programs and  providing  medical  care  to
    54  treat  illness  or injury caused by the effects of climate change; relo-
    55  cating, elevating, or retrofitting sewage treatment plants vulnerable to
    56  flooding; installing energy efficient cooling systems and other weather-
        S. 2129--B                          4
 
     1  ization and energy efficiency  upgrades  and  retrofits  in  public  and
     2  private buildings, including schools and public housing; upgrading parts
     3  of  the  electrical grid to increase stability and resilience, including
     4  supporting  the  creation  of  self-sufficient  clean energy microgrids;
     5  addressing urban heat island effects through green spaces, urban  fores-
     6  try, and other interventions; and responding to toxic algae blooms, loss
     7  of  agricultural  topsoil, and other climate-driven ecosystem threats to
     8  forests, farms, fisheries, and food systems.
     9    3. "Coal" shall have the same definition as in section  1-103  of  the
    10  energy law.
    11    4.  "Controlled  group" means two or more entities treated as a single
    12  employer under section 52(a) or (b) or section  414(m)  or  (o)  of  the
    13  Internal  Revenue  Code.  In applying subsections (a) and (b) of section
    14  52, section 1563 of the Internal Revenue Code shall be  applied  without
    15  regard to subsection(b)(2)(C). For purposes of this article, entities in
    16  a  controlled group are treated as a single entity for purposes of meet-
    17  ing the definition of responsible party and are  jointly  and  severally
    18  liable for payment of any cost recovery demand owed by any entity in the
    19  controlled group.
    20    5.  "Cost recovery demand" means a charge asserted against a responsi-
    21  ble party for cost recovery payments under the program  for  payment  to
    22  the fund.
    23    6. "Covered greenhouse gas emissions" means, with respect to any enti-
    24  ty,  the total quantity of greenhouse gases released into the atmosphere
    25  during the covered period, expressed in metric tons  of  carbon  dioxide
    26  equivalent, as defined in section 75-0101 of this chapter, including but
    27  not   limited  to  releases  of  greenhouse  gases  resulting  from  the
    28  extraction, storage,  production,  refinement,  transport,  manufacture,
    29  distribution,  sale,  and  use  of  fossil  fuels  or petroleum products
    30  extracted, produced, refined, or sold by such entity.
    31    7. "Covered period" means the period that  began  January  first,  two
    32  thousand and ended on December thirty-first, two thousand eighteen.
    33    8.  "Crude  oil"  means  oil or petroleum of any kind and in any form,
    34  including bitumen, oil sands, heavy oil, conventional and unconventional
    35  oil, shale oil, natural gas liquids,  condensates,  and  related  fossil
    36  fuels.
    37    9. "Entity" means any individual, trustee, agent, partnership, associ-
    38  ation,  corporation,  company,  municipality,  political subdivision, or
    39  other legal organization, including a foreign nation, that holds or held
    40  an ownership interest in a fossil fuel business during the covered peri-
    41  od.
    42    10. "Fossil fuel" shall have the same definition as in  section  1-103
    43  of the energy law.
    44    11. "Fossil fuel business" means a business engaging in the extraction
    45  of fossil fuels or the refining of petroleum products.
    46    12. "Fuel gases" shall have the same definition as in section 1-103 of
    47  the energy law.
    48    13. "Fund" means the climate change adaptation fund established pursu-
    49  ant to section ninety-seven-m of the state finance law.
    50    14.  "Greenhouse  gas"  shall  have  the same definition as in section
    51  75-0101 of this chapter.
    52    15. "Nature-based solutions" shall mean projects that utilize or mimic
    53  nature or natural processes and functions and that may also offer  envi-
    54  ronmental,  economic,  and social benefits, while increasing resilience.
    55  Nature-based solutions include both green and natural infrastructure.
        S. 2129--B                          5
 
     1    16. "Notice of cost recovery demand" means the  written  communication
     2  informing  a responsible party of the amount of the cost recovery demand
     3  payable to the fund.
     4    17.  "Petroleum products" shall have the same definition as in section
     5  1-103 of the energy law.
     6    18. "Program"  means  the  climate  change  adaptation  cost  recovery
     7  program established under section 76-0103 of this article.
     8    19. "Qualifying expenditure" means an authorized payment from the fund
     9  in  support of a climate change adaptive infrastructure project, includ-
    10  ing its operation and maintenance, as defined by the department.
    11    20. "Responsible party" means any entity (or a successor  in  interest
    12  to  such entity described herein), which, during any part of the covered
    13  period, was engaged in the trade or business of extracting  fossil  fuel
    14  or  refining crude oil and is determined by the department to be respon-
    15  sible for more than one billion tons of  covered  greenhouse  gas  emis-
    16  sions. The term responsible party shall not include any person who lacks
    17  sufficient  connection  with the state to satisfy the nexus requirements
    18  of the United States Constitution.
    19  § 76-0103. The climate change adaptation cost recovery program.
    20    1. There is hereby established a climate change adaptation cost recov-
    21  ery program administered by the department.
    22    2. The purposes of the program shall be the following:
    23    a. To secure compensatory payments from responsible parties based on a
    24  standard of strict liability to provide a source of revenue for  climate
    25  change adaptive infrastructure projects within the state.
    26    b. To determine proportional liability of responsible parties pursuant
    27  to subdivision three of this section;
    28    c.  To  impose  cost recovery demands on responsible parties and issue
    29  notices of cost recovery demands;
    30    d. To accept and collect payment from responsible parties;
    31    e. To identify climate change adaptive infrastructure projects;
    32    f.  To  disperse  funds  to  climate  change  adaptive  infrastructure
    33  projects; and
    34    g.  To allocate funds in such a way as to achieve a goal that at least
    35  forty percent of the qualified expenditures from the  program,  but  not
    36  less  than thirty-five percent of such expenditures, shall go to climate
    37  change  adaptive  infrastructure  projects  that  benefit  disadvantaged
    38  communities as defined in section 75-0101 of this chapter.
    39    3.  a. A responsible party shall be strictly liable, without regard to
    40  fault, for a share of the costs of climate change  adaptive  infrastruc-
    41  ture  projects,  including their operation and maintenance, supported by
    42  the fund.
    43    b. With respect to each responsible party, the  cost  recovery  demand
    44  shall  be  equal  to an amount that bears the same ratio to seventy-five
    45  billion dollars as the responsible party's applicable share  of  covered
    46  greenhouse  gas  emissions  bears  to the aggregate applicable shares of
    47  covered greenhouse gas emissions of all responsible parties.
    48    c. The applicable share of covered greenhouse gas emissions taken into
    49  account under this section for any responsible party shall be the amount
    50  by which the covered  greenhouse  gas  emissions  attributable  to  such
    51  responsible party exceeds one billion metric tons.
    52    d.  Where  an entity owns a minority interest in another entity of ten
    53  percent or more, the calculation of the  entity's  applicable  share  of
    54  greenhouse  gas  emissions  taken  into account under this section shall
    55  include the applicable share of  greenhouse  gas  emissions  taken  into
    56  account  under this section by the entity in which the responsible party
        S. 2129--B                          6
 
     1  holds a minority interest, multiplied by the percentage of the  minority
     2  interest held.
     3    e.  In determining the amount of greenhouse gas emissions attributable
     4  to any entity, an amount equivalent to nine hundred forty-two  and  one-
     5  half  metric  tons  of  carbon  dioxide  equivalent  shall be treated as
     6  released for every million pounds of coal attributable to  such  entity;
     7  an  amount  equivalent  to  four hundred thirty-two thousand one hundred
     8  eighty metric tons of carbon dioxide  equivalent  shall  be  treated  as
     9  released  for  every  million  barrels of crude oil attributable to such
    10  entity; and an amount equivalent to fifty-three  thousand  four  hundred
    11  forty  metric  tons  of  carbon  dioxide  equivalent shall be treated as
    12  released for every million cubic feet of fuel gases attributable to such
    13  entity.
    14    f. The commissioner may adjust the cost recovery demand  amount  of  a
    15  responsible  party refining petroleum products (or who is a successor in
    16  interest to such an entity) if such responsible party establishes to the
    17  satisfaction of the commissioner that a portion  of  the  cost  recovery
    18  demand amount was attributable to the refining of crude oil extracted by
    19  another  responsible party (or who is a successor in interest to such an
    20  entity) that accounted for such crude oil in determining its cost recov-
    21  ery demand amount.
    22    g. Payment of a cost recovery demand shall be  made  in  full  on  the
    23  applicable  payment  date  unless  a  responsible party elects to pay in
    24  installments pursuant to paragraph h of this subdivision.
    25    h. A responsible party may elect  to  pay  the  cost  recovery  demand
    26  amount  in  twenty-four  annual installments, eight percent of the total
    27  due in the first installment and four percent of the total due  in  each
    28  of the following twenty-three installments. If an election is made under
    29  this  paragraph,  the  first installment shall be paid on the applicable
    30  payment date and each subsequent installment shall be paid on  the  same
    31  date as the applicable payment date in each succeeding year.
    32    i.  If there is any addition to the original amount of the cost recov-
    33  ery demand for failure to timely pay any installment required under this
    34  subdivision, a liquidation or sale of substantially all  the  assets  of
    35  the  responsible party (including in a proceeding under U.S. Code: Title
    36  11 or similar case), a cessation of business by the  responsible  party,
    37  or  any  similar  circumstance, then the unpaid balance of all remaining
    38  installments shall be due on the date of such event (or in the case of a
    39  proceeding under U.S. Code: Title 11 or similar case, on the day  before
    40  the  petition  is  filed). The preceding sentence shall not apply to the
    41  sale of substantially all of the assets of  a  responsible  party  to  a
    42  buyer  if  such buyer enters into an agreement with the department under
    43  which such buyer is liable for the remaining installments due under this
    44  subdivision in the same manner as if such  buyer  were  the  responsible
    45  party.
    46    4.  a.  Within  one  year  of  the effective date of this article, the
    47  department shall promulgate such regulations as are necessary  to  carry
    48  out this article, including but not limited to:
    49    i.  adopting  methodologies using the best available science to deter-
    50  mine responsible parties and their applicable share  of  covered  green-
    51  house gas emissions consistent with the provisions of this article;
    52    ii.  registering  entities  that  are  responsible  parties  under the
    53  program;
    54    iii. issuing notices of cost recovery demand  to  responsible  parties
    55  informing  them  of  the cost recovery demand amount; how and where cost
    56  recovery demands can be paid; the potential consequences  of  nonpayment
        S. 2129--B                          7

     1  and  late  payment; and information regarding their rights to contest an
     2  assessment;
     3    iv.  accepting payments from, pursuing collection efforts against, and
     4  negotiating settlements with responsible parties; and
     5    v. adopting procedures for identifying and  selecting  climate  change
     6  adaptive infrastructure projects eligible to receive qualifying expendi-
     7  tures, including legislative budget appropriations, issuance of requests
     8  for proposals from localities and not-for-profit and community organiza-
     9  tions,  grants to private individuals, or other methods as determined by
    10  the department, and for dispersing moneys from the fund  for  qualifying
    11  expenditures.    When  considering  projects intended to stabilize tidal
    12  shorelines, the department  shall  encourage  the  use  of  nature-based
    13  solutions.    Total qualifying expenditures shall be allocated in such a
    14  way as to achieve a goal that at least forty percent  of  the  qualified
    15  expenditures  from the program, but not less than thirty-five percent of
    16  such expenditures, shall go to climate  change  adaptive  infrastructure
    17  projects  that  benefit  disadvantaged communities as defined in section
    18  75-0101 of this chapter.
    19    b. The department shall hold at least two public hearings, one in-per-
    20  son and one virtual, on proposed regulations, with a minimum  of  thirty
    21  days'  public  notice in compliance with the provisions of article seven
    22  of the public officers law.
    23    5. Within two years of the effective date of this article, the depart-
    24  ment shall complete a statewide climate change  adaptation  master  plan
    25  for  the  purpose  of  guiding the dispersal of funds in a timely, effi-
    26  cient, and equitable manner to all regions of the  state  in  accordance
    27  with  the  provisions  of  this  chapter.  In  completing such plan, the
    28  department shall:
    29    a. collaborate with the department of state, empire state development,
    30  the department of agriculture and markets, the  New  York  state  energy
    31  research  and  development  authority, the department of public service,
    32  and the New York independent systems operator;
    33    b. assess the adaptation needs and vulnerabilities  of  various  areas
    34  vital  to  the  state's  economy, normal functioning, and the health and
    35  well-being of New Yorkers, including but not  limited  to:  agriculture,
    36  biodiversity,  ecosystem services, education, finance, healthcare, manu-
    37  facturing, housing and real estate, retail, tourism (including state and
    38  municipal parks), transportation, and municipal and local government.
    39    c. identify major potential,  proposed,  and  ongoing  climate  change
    40  adaptive infrastructure projects throughout the state;
    41    d.  identify opportunities for alignment with existing federal, state,
    42  and local funding streams;
    43    e. consult with stakeholders, including local governments, businesses,
    44  environmental advocates, relevant subject area  experts,  and  represen-
    45  tatives of disadvantaged communities; and
    46    f.  provide  opportunities for public engagement in all regions of the
    47  state.
    48    6. The department, the department of taxation  and  finance,  and  the
    49  attorney  general  are  hereby  authorized  to implement and enforce the
    50  provisions of this article.
    51    7. The department or the department  of  taxation  and  finance  shall
    52  provide  an opportunity to be heard to any responsible parties that seek
    53  to contest a cost recovery demand. Determinations made  in  favor  of  a
    54  petitioner  after such hearing shall be final and conclusive. A determi-
    55  nation in favor of the state may be appealed under article seventy-eight
    56  of the civil practice law and rules.
        S. 2129--B                          8
 
     1    8. Moneys received from cost recovery demands shall  be  deposited  in
     2  the climate change adaptation fund established pursuant to section nine-
     3  ty-seven-m of the state finance law.
     4    9.  a.  The  department shall conduct an independent evaluation of the
     5  climate change adaptation cost recovery program.  The  purpose  of  this
     6  evaluation is to determine the effectiveness of the program in achieving
     7  its purposes as defined in subdivision two of this section.
     8    b.  Such  evaluation  shall be provided to the governor, the temporary
     9  president of the senate and the speaker of the  assembly  on  or  before
    10  January  first  of  the second calendar year following the year in which
    11  this article is enacted into law, and annually on  or  before  September
    12  thirtieth thereafter.
    13    c.  Any entity contracted by the department to conduct such evaluation
    14  shall receive prompt payment of all moneys due upon completion  of  such
    15  evaluation.
    16  § 76-0105. Labor and job standards and worker protection.
    17    1.  All  public  entities  involved  in  implementing  projects funded
    18  through the climate change adaptation cost recovery program shall assess
    19  and  implement  strategies  to  increase  employment  opportunities  and
    20  improve  job  quality.  Within  one hundred twenty days of the effective
    21  date of this section, the governor shall publish a report, accessible on
    22  the state's website, which provides:
    23    a. steps that will be taken to ensure compliance  with  this  section,
    24  including the department or office, or combination thereof, charged with
    25  implementation of the provisions of this section;
    26    b. regulations necessary to ensure the prioritization of the statewide
    27  goal of creating good jobs and increasing employment opportunities; and
    28    c.  steps that will be taken with all public entities, including local
    29  and county level governments, to implement a system to track compliance,
    30  accept reports of non-compliance  for  enforcement  action,  and  report
    31  annually  on the adoption of these standards to the legislature starting
    32  one year from the effective date of this section.
    33    2. For purposes of this section, "public  entity"  shall  include  the
    34  state  and  all of its political subdivisions, including but not limited
    35  to  counties,  municipalities,  agencies,  authorities,  public  benefit
    36  corporations,  public  trusts,  and  local  development  corporations as
    37  defined in subdivision eight of section  eighteen  hundred  one  of  the
    38  public  authorities  law  or section fourteen hundred eleven of the not-
    39  for-profit corporation  law,  a  municipal  corporation  as  defined  in
    40  section  one  hundred nineteen-n of the general municipal law, an indus-
    41  trial development agency formed pursuant to article  eighteen-A  of  the
    42  general  municipal  law  or  industrial  development  authorities formed
    43  pursuant to article eight of the public authorities law, and any  state,
    44  local  or  interstate or international authorities as defined in section
    45  two of the public authorities law; and shall include any  trust  created
    46  by any such entities.
    47    3.   In   considering  and  issuing  permits,  licenses,  regulations,
    48  contracts and other administrative approvals and decisions necessary for
    49  implementation of projects funded in whole,  or  in  part,  through  the
    50  climate  change  adaptation  cost  recovery program, all public entities
    51  shall apply the following standards:
    52    a. For any construction work, the payment of no less  than  prevailing
    53  wages  for all employees of any contractors and subcontractors, consist-
    54  ent with sections two hundred twenty, two hundred twenty-a, two  hundred
    55  twenty-b,  two  hundred  twenty-i,  two  hundred  twenty-three,  and two
    56  hundred twenty-four-b of the labor law, and building services,  consist-
        S. 2129--B                          9
 
     1  ent  with  article nine of the labor law; where a recipient of financial
     2  assistance contracts building service work or operations and maintenance
     3  work to a building service contractor, the contractor  is  held  to  the
     4  same  obligations with respect to prevailing wages as the recipient. The
     5  recipient must include terms establishing  this  obligation  within  any
     6  contract signed with a contractor.
     7    b.  (i) Any public entity receiving at least five million dollars from
     8  funds allocated pursuant to the climate change adaptation cost  recovery
     9  program  for  a project which involves the construction, reconstruction,
    10  alteration, maintenance, moving, demolition, excavation, development  or
    11  other  improvement  of any building, structure or land, shall be subject
    12  to section two hundred twenty-two of the labor law.
    13    (ii) Any privately owned project receiving funds allocated pursuant to
    14  the climate change adaptation cost recovery  program  which  utilizes  a
    15  project  labor agreement on such project shall not be subject to article
    16  eight of the labor law.
    17    c. The inclusion of contract language requiring contractors to  estab-
    18  lish  labor  harmony  policies.  The public entity may require a private
    19  owner, or a third party acting on such owner's behalf, as a condition of
    20  receiving funds pursuant to the climate change adaptation cost  recovery
    21  program,  to  stipulate  to  the public entity that it will enter into a
    22  labor peace agreement with at least one  bona  fide  labor  organization
    23  either  where such bona fide labor organization is actively representing
    24  employees in such job-type or, upon notice, by a bona fide labor  organ-
    25  ization that is attempting to represent employees in such job-type.  For
    26  purposes  of  this  section  "labor  peace agreement" means an agreement
    27  between an entity and labor organization that, at  a  minimum,  protects
    28  the state's proprietary interests by prohibiting labor organizations and
    29  members from engaging in work stoppages, boycotts, and any other econom-
    30  ic interference with the relevant project or program.
    31    d.  (i)  The  inclusion of contract language with a provision that the
    32  iron,  steel,  aluminum,  glass,  copper,  manufactured  products,   and
    33  construction  products, including without limitation, vehicles, omnibus-
    34  es, school buses, trucks, construction equipment,  earth  moving  equip-
    35  ment,  cranes,  drilling  equipment, rolling stock, train control equip-
    36  ment, communication equipment, traction power equipment,  rolling  stock
    37  prototypes,  rolling  stock frames, rolling stock car shells, batteries,
    38  charging equipment, fuel cells, fueling equipment,  turbines,  nacelles,
    39  blades,  rotors,  generators, motors, hubs, cable, conduit, controllers,
    40  towers, photovoltaic  cells,  solar  panels,  meters,  inverters,  pipe,
    41  tubing, fittings, tanks, flanges, valves, concrete, rebar, brick, aggre-
    42  gate,  concrete block, cement, timber, lumber, tile, and drywall used or
    43  supplied in the performance of the contract or any subcontract  thereto,
    44  shall  be  produced  or  made in whole or substantial part in the United
    45  States, its territories or possessions. In the case of an  iron,  steel,
    46  or  aluminum  product,  all  manufacturing must take place in the United
    47  States, from the initial melting stage through the application of  coat-
    48  ings,  except  metallurgical processes involving the refinement of steel
    49  additives.
    50    (ii) The provisions of subparagraph (i) of this  paragraph  shall  not
    51  apply  in  any  case  or  category  of  cases  in  which the head of the
    52  contracting public entity finds that: (1) applying subparagraph  (i)  of
    53  this  paragraph  would  be  inconsistent  with  the public interest; (2)
    54  products are not produced in the United States in sufficient and reason-
    55  ably available quantities and of a satisfactory quality; or  (3)  inclu-
    56  sion of products produced in the United States will increase the cost of
        S. 2129--B                         10
 
     1  the overall project by more than twenty-five percent. If the head of the
     2  contracting  public  entity  receives  a request for a waiver under this
     3  subdivision, such person shall  make  available  to  the  public  on  an
     4  informal  basis  a copy of the request and information available to such
     5  person concerning the request, and shall allow for informal public input
     6  on the request for at least fifteen days prior to making a finding based
     7  on the request. The head of the contracting public entity shall make the
     8  request and accompanying  information  available  by  electronic  means,
     9  including  on  the  official  public  website  of the public entity. The
    10  provisions of subparagraph (i) of this paragraph  shall  not  apply  for
    11  products purchased prior to the effective date of this article.
    12    (iii)  The head of the contracting public entity may, at the contract-
    13  ing entity's sole discretion, provide for a solicitation  of  a  request
    14  for  proposal,  invitation  for bid, or solicitation of proposal, or any
    15  other method provided for by law or regulation for soliciting a response
    16  from offerors intending to result in a contract pursuant to  this  para-
    17  graph involving a competitive process in which the evaluation of compet-
    18  ing  bids  gives  significant consideration in the evaluation process to
    19  the procurement of equipment and supplies from businesses located in New
    20  York state.
    21    e. Apprenticeship and workforce development utilization: (i)  wherever
    22  possible,  contractors  and subcontractors should be required to partic-
    23  ipate in apprenticeship programs, registered in accordance with  article
    24  twenty-three  of the labor law, in the trades in which they are perform-
    25  ing work; (ii) for industries without apprenticeship programs,  the  use
    26  of  workforce training, preferably in conjunction with a bona fide labor
    27  organization, shall be required; and (iii) encouragement  of  registered
    28  pre-apprenticeship  direct  entry  programs for the recruitment of local
    29  and/or disadvantaged workers.
    30    f. Notwithstanding any provision of law to the contrary, all rights or
    31  benefits, including terms and conditions of employment,  and  protection
    32  of civil service and collective bargaining status of all existing public
    33  employees  shall  be  preserved  and  protected. Nothing in this section
    34  shall result in the: (i) displacement of any currently  employed  worker
    35  or  loss of position (including partial displacement such as a reduction
    36  in the hours of non-overtime work, wages,  or  employment  benefits)  or
    37  result  in  the impairment of existing collective bargaining agreements;
    38  (ii) transfer of existing duties and functions  related  to  maintenance
    39  and  operations  currently performed by existing employees of authorized
    40  entities to a contracting entity; or (iii) transfer of future duties and
    41  functions ordinarily performed by employees of authorized entities to  a
    42  contracting entity.
    43    4.  a.  Any  public  entity  requesting bids or awarding contracts for
    44  renewable energy projects, energy efficiency projects, or other projects
    45  funded by the climate change adaptation cost  recovery  program,  except
    46  for  construction  projects,  shall  require  any  applicant, bidder, or
    47  responder to submit a New York jobs plan as part of its application, bid
    48  or response. The department of environmental conservation, in  consulta-
    49  tion  with the department of labor, shall develop all forms, procedures,
    50  evaluation and scoring criteria, and guidance, necessary for the  imple-
    51  mentation of the New York jobs plan. To the extent feasible, the depart-
    52  ment  of environmental conservation, in consultation with the department
    53  of labor, shall consider  the  input  and  recommendations  of  relevant
    54  public entities on the development of the New York jobs plan.
    55    b.  The  New  York  jobs  plan  shall require applicants, bidders, and
    56  responders to provide information on jobs that would result  from  being
        S. 2129--B                         11
 
     1  awarded  the bid or contract for such projects. At a minimum, this shall
     2  include the following information for nonsupervisory  positions,  broken
     3  down by classification:
     4    (i)  The  number  of  full-time  non-temporary  jobs retained, and the
     5  number to be created.
     6    (ii) The number of positions classified as employees,  as  defined  in
     7  section  seven  hundred forty of the labor law, and positions classified
     8  as independent contractors.
     9    (iii) The number of jobs to be specifically reserved  for  individuals
    10  facing barriers to employment and the number to be reserved for individ-
    11  uals from disadvantaged communities.
    12    (iv) The minimum wages and fringe benefits amounts to be paid.
    13    (v) The proposed amounts for worker training and information about any
    14  existing  apprenticeship  program  registered  with  the department or a
    15  federally recognized state apprenticeship agency that complies with  the
    16  requirements  under  Parts  29 and 30 of title 29, code of federal regu-
    17  lations.
    18    (vi) In the event that a federal authority specifically authorizes use
    19  of a geographic preference or when covered public contracts  are  funded
    20  exclusively  through  state or local funds, the New York jobs plan shall
    21  require information on the number of local jobs to be created.
    22    c. Awarding public entities shall require the same New York jobs  plan
    23  information to be submitted from all known subcontractors at the time of
    24  the solicitation or bid for the project is released.
    25    d.  New  York  jobs plan commitments shall be included in the contract
    26  awarded by the public entity or its contractors as a material term.
    27    e. For non-competitive public contracts awarded  under  this  article,
    28  applicants,  bidders, or responders shall create a New York jobs plan as
    29  set forth in this section.  For  competitive  public  contracts,  public
    30  entities  shall  award  contracts  using  a  competitive  best-value bid
    31  procurement process. The applicants', bidders', or responders' New  York
    32  jobs  plan  shall be scored as a part of the overall application for the
    33  public  contract,  awarding  additional  consideration  to   applicants,
    34  bidders, or responders who do any of the following:
    35    (i)  Have  the  greatest  beneficial  economic impact on the state and
    36  local economies as a result of receiving the public contract,  based  on
    37  the priority criteria outlined in its New York jobs plan.
    38    (ii)  Enhance the state's commitment to energy conservation, pollution
    39  and greenhouse gas emissions reduction, and transportation efficiency.
    40    (iii) Retain the greatest number of full-time, non-temporary employees
    41  compensated at a wage rate for the project jurisdiction  as  established
    42  in  the  living wage calculator published by the Massachusetts Institute
    43  of Technology, using the living wage rate for a household of two working
    44  adults with two children in the jurisdiction of the project.
    45    (iv) Make concrete commitments to  creating  the  greatest  number  of
    46  full-time,  non-temporary  jobs compensating employees at a wage rate at
    47  or above the living wage rate for the  project  jurisdiction  as  estab-
    48  lished  in  the  living  wage  calculator published by the Massachusetts
    49  Institute of Technology, using the living wage rate for a  household  of
    50  two working adults with two children in the jurisdiction of the project.
    51    (v)  Commit  to  at  least ninety percent of the labor on the contract
    52  being performed by workers classified as employees.
    53    (vi) Offer targeted training and opportunities for individuals  facing
    54  barriers to employment and workers from disadvantaged communities.
        S. 2129--B                         12
 
     1    f. The department, in consultation with the department of labor, shall
     2  develop  a  web-based portal to track New York jobs plan commitments and
     3  compliance.
     4    (i)  All New York jobs plan commitments and compliance reporting shall
     5  be viewable by the public, through the web-based portal.
     6    (ii) Recipients of public contracts shall,  on  an  annual  basis,  be
     7  required  to upload progress reports on each of the commitments included
     8  in their New York jobs plan application, for the duration of the covered
     9  public contract.
    10    g. Noncompliance with New York jobs plan commitments would violate the
    11  terms of the public contract. At a minimum these  commitments  would  be
    12  enforceable  through standard breach of contract remedies, including but
    13  not limited to, termination of the public contract.
    14    5. Nothing set forth in this section shall  be  construed  to  impede,
    15  infringe,  or diminish the rights and benefits which accrue to employees
    16  through bona fide collective bargaining agreements, or otherwise  dimin-
    17  ish the integrity of the existing collective bargaining relationship.
    18    6.  Nothing  set  forth in this section shall preclude a public entity
    19  from setting additional requirements or standards in addition  to  those
    20  set forth in this article.
    21    §  4. The state finance law is amended by adding a new section 97-m to
    22  read as follows:
    23    § 97-m. Climate change adaptation fund. 1. There is hereby established
    24  in the custody of the comptroller and the commissioner of  taxation  and
    25  finance  a  special  revolving  fund  to be known as the "climate change
    26  adaptation fund" for the purpose of receiving moneys through cost recov-
    27  ery demands and issuing funds for qualifying  expenditures  pursuant  to
    28  the climate change adaptation cost recovery program established in arti-
    29  cle seventy-six of the environmental conservation law.
    30    2.  No  monies  shall be expended from the fund for any project except
    31  qualifying expenditures pursuant to the program, including their  opera-
    32  tion and maintenance.
    33    3.  Revenues  in  the  fund  shall  be  kept separate and shall not be
    34  commingled with any other moneys in the custody of  the  comptroller  or
    35  the  commissioner of taxation and finance. All deposits of such revenues
    36  shall, if required by the comptroller, be secured by obligations of  the
    37  United  States  or of the state having a market value equal at all times
    38  to the amount of such deposits and all banks  and  trust  companies  are
    39  authorized to give security for such deposits. Any such revenues in such
    40  fund  may,  upon the discretion of the comptroller, be invested in obli-
    41  gations in which the comptroller is authorized  to  invest  pursuant  to
    42  section ninety-eight-a of this article.
    43    4. All payments of moneys from the fund shall be made on the audit and
    44  warrant of the comptroller.
    45    § 5. Availability of additional remedies. Nothing in this act shall be
    46  deemed  to preclude the pursuit of a civil action or other remedy by any
    47  person. The remedies provided in this  act  are  in  addition  to  those
    48  provided by existing statutory or common law.
    49    §  6.  Severability. If any word, phrase, clause, sentence, paragraph,
    50  section, or part of this act shall be adjudged by any court of competent
    51  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    52  invalidate the remainder thereof, but shall be confined in its operation
    53  to the word, phrase, clause, sentence, paragraph, section, or part ther-
    54  eof  directly  involved  in the controversy in which such judgment shall
    55  have been rendered.
        S. 2129--B                         13
 
     1    § 7. Construction. This act, being necessary for the  general  health,
     2  safety,  and  welfare  of  the  people of this state, shall be liberally
     3  construed to effect its purpose.
     4    § 8. This act shall take effect immediately.

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