STATE OF NEW YORK ________________________________________________________________________ 3351--B 2023-2024 Regular Sessions IN ASSEMBLY February 2, 2023 ___________ Introduced by M. of A. DINOWITZ, PAULIN, L. ROSENTHAL, GLICK, BENEDETTO, SIMON, BURGOS, TAPIA, EPSTEIN, DARLING, DICKENS, ZINERMAN, STECK, THIELE, KELLES, REYES, LEVENBERG, HEVESI, GONZALEZ-ROJAS, FAHY, ARDI- LA, CARROLL, RAGA, DE LOS SANTOS, RAMOS, TAYLOR, COLTON, LEE, BORES, CUNNINGHAM, GIBBS, OTIS, SILLITTI, SIMONE, BURDICK, KIM, SOLAGES, ZACCARO, CLARK, CRUZ, EACHUS, SEAWRIGHT, WEPRIN, BURKE, SHIMSKY, LUNS- FORD, STIRPE, DAVILA, BICHOTTE HERMELYN, LAVINE, K. BROWN, BARRETT, WALKER, SEPTIMO, STERN, PEOPLES-STOKES, AUBRY, CHANDLER-WATERMAN, SAYEGH, ALVAREZ, JACKSON, PRETLOW, BUTTENSCHON, SANTABARBARA, GUNTHER, BRONSON, MEEKS, COOK, JEAN-PIERRE, ANDERSON, JACOBSON, DAIS, McDONALD, ROZIC, PHEFFER AMATO, LUCAS, RAJKUMAR -- read once and referred to the Committee on Environmental Conservation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- recommitted to the Committee on Environmental Conservation in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the environmental conservation law, in relation to establishing the climate change adaptation cost recovery program; and to amend the state finance law, in relation to establishing the climate change adaptation fund The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "climate 2 change superfund act". 3 § 2. Legislative findings. The legislature finds and declares the 4 following: 5 1. Climate change, resulting primarily from the combustion of fossil 6 fuels, is an immediate, grave threat to the state's communities, envi- 7 ronment, and economy. In addition to mitigating the further buildup of 8 greenhouse gases, the state must take action to adapt to certain conse- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02710-13-4A. 3351--B 2 1 quences of climate change that are irreversible, including rising sea 2 levels, increasing temperatures, extreme weather events, flooding, heat 3 waves, toxic algal blooms and other climate-change-driven threats. 4 Maintaining New York's quality of life into the future, particularly for 5 young people, who will experience greater impacts from climate change 6 over their lifetimes, will be one of the state's greatest challenges 7 over the next three decades. Meeting that challenge will require a 8 shared commitment of purpose, huge investments in new or upgraded 9 infrastructure, and new revenue sources to pay for those investments. 10 2. New York has previously adopted programs now in place - the inac- 11 tive hazardous waste disposal site (state superfund) program and the oil 12 spill fund - to remediate environmental damage to lands and waters based 13 on the principle that, where possible, the entities responsible for 14 environmental damage should pay for its cleanup. No similar program 15 exists yet for the pollution of the atmosphere by greenhouse gas buildup 16 as a result of burning fossil fuels. 17 3. Based on decades of research it is now possible to determine with 18 great accuracy the share of greenhouse gases released into the atmos- 19 phere by specific fossil fuel companies over the last 70 years or more, 20 making it possible to assign liability to and require compensation from 21 companies commensurate with their emissions during a given time period. 22 4. It is the intent of the legislature to establish a climate change 23 adaptation cost recovery program that will require companies that have 24 contributed significantly to the buildup of climate change-driving 25 greenhouse gases in the atmosphere to bear a proportionate share of the 26 cost of infrastructure investments and other expenses necessary for 27 comprehensive adaptation to the impacts of climate change in New York 28 state. 29 5. The obligation to pay under the program is based on the fossil fuel 30 companies' historic contribution to the buildup of greenhouse gases that 31 is largely responsible for climate change. The program operates under a 32 standard of strict liability; companies are required to pay into the 33 fund because the use of their products caused the pollution. No finding 34 of wrongdoing is required. 35 6. a. Payments by historical polluters into the climate change adap- 36 tation cost recovery program would be used for new or upgraded infras- 37 tructure needs such as coastal wetlands restoration, storm water drain- 38 age system upgrades, energy efficient cooling systems in public and 39 private buildings, including schools and public housing, support for 40 programs addressing climate-driven public health challenges, and 41 responses to extreme weather events, all of which are necessary to 42 protect the public safety and welfare in the face of the growing impacts 43 of climate change. 44 b. The cost to the state of climate adaptation investments through 45 2050 will easily reach several hundred billion dollars, based on an 46 array of estimates for projects impacting different regions across the 47 state, far more than the $75 billion being assessed on the fossil fuel 48 industry. For example, upgrading New York City's sewer system to deal 49 with regularly-occurring large rain events is estimated to cost around 50 $100 billion; a single project proposed by the Army Corps of Engineers 51 to protect New York City from storm-driven flooding is estimated to cost 52 $52 billion; protecting Long Island from extreme weather is estimated to 53 cost at least $75-$100 billion; a recent study from the State Comp- 54 troller found that from 2018 to 2028, 55 percent of New York State 55 localities' municipal spending outside of New York City was or will be 56 related to climate change and that in fiscal year 2023-2024 alone, NewA. 3351--B 3 1 York City planned to spend $829 million on projects dedicated exclusive- 2 ly to adaptation and resilience, with an additional $1.3 billion on 3 projects that are partially for these purposes. These are only a few 4 examples of the numerous projects that are now or will soon be needed 5 across the state. 6 c. The total assessment rate of $3 billion dollars per year represents 7 a small percentage of the extraordinary cost to New York State for 8 repairing from and preparing for climate change-driven extreme events 9 over the next 25 years, and is designed to have a meaningful impact on 10 the burden borne by New York State taxpayers for climate adaptation 11 while being sufficiently limited so as to not impose a punitive negative 12 impact on an industry in which just the three largest domestic oil and 13 gas producers made a combined $85.6 billion in profits in 2023. Recent 14 science has determined that the largest one hundred fossil fuel produc- 15 ing companies are responsible for more than 70% of global greenhouse gas 16 emissions since 1988, and therefore bear a much higher share of respon- 17 sibility for climate damage to New York State than is represented by the 18 $75 billion being assessed them. 19 d. At least 35 percent, with a goal of 40 percent or more of the over- 20 all benefits of program spending would go to climate change adaptive 21 infrastructure projects that directly benefit disadvantaged communities. 22 7. A covered period of 2000-2018 has been selected. Over 70 percent 23 of the total increase in greenhouse gas concentrations since the Indus- 24 trial Revolution has occurred since 1950, with a marked increase in the 25 rate of emissions after the year 2000. By 2000 the science of climate 26 change was well established, and no reasonable corporate actor could 27 have failed to anticipate regulatory action to address its impacts. In 28 addition, the data necessary to attribute proportional responsibility is 29 very robust in the covered period. 30 8. This act is not intended to intrude on the authority of the feder- 31 al government in areas where it has preempted the right of the states to 32 legislate. This act is remedial in nature, seeking compensation for 33 damages resulting from the past actions of polluters. 34 § 3. The environmental conservation law is amended by adding a new 35 article 76 to read as follows: 36 ARTICLE 76 37 CLIMATE CHANGE ADAPTATION COST RECOVERY PROGRAM 38 Section 76-0101. Definitions. 39 76-0103. The climate change adaptation cost recovery program. 40 76-0105. Labor and job standards and worker protection. 41 § 76-0101. Definitions. 42 For the purposes of this article the following terms shall have the 43 following meanings: 44 1. "Applicable payment date" means September thirtieth of the second 45 calendar year following the year in which this article is enacted into 46 law. 47 2. "Climate change adaptive infrastructure project" means an infras- 48 tructure project designed to avoid, moderate, repair, or adapt to nega- 49 tive impacts caused by climate change, and to assist communities, house- 50 holds, and businesses in preparing for future climate change-driven 51 disruptions. Such projects include but are not limited to restoring 52 coastal wetlands and developing other nature-based solutions and coastal 53 protections; upgrading storm water drainage systems; making defensive 54 upgrades to roads, bridges, subways, and transit systems; preparing for 55 and recovering from hurricanes and other extreme weather events; under- 56 taking preventive health care programs and providing medical care toA. 3351--B 4 1 treat illness or injury caused by the effects of climate change; relo- 2 cating, elevating, or retrofitting sewage treatment plants vulnerable to 3 flooding; installing energy efficient cooling systems and other weather- 4 ization and energy efficiency upgrades and retrofits in public and 5 private buildings, including schools and public housing; upgrading parts 6 of the electrical grid to increase stability and resilience, including 7 supporting the creation of self-sufficient clean energy microgrids; 8 addressing urban heat island effects through green spaces, urban fores- 9 try, and other interventions; and responding to toxic algae blooms, loss 10 of agricultural topsoil, and other climate-driven ecosystem threats to 11 forests, farms, fisheries, and food systems. 12 3. "Coal" shall have the same definition as in section 1-103 of the 13 energy law. 14 4. "Controlled group" means two or more entities treated as a single 15 employer under section 52(a) or (b) or section 414(m) or (o) of the 16 Internal Revenue Code. In applying subsections (a) and (b) of section 17 52, section 1563 of the Internal Revenue Code shall be applied without 18 regard to subsection(b)(2)(C). For purposes of this article, entities in 19 a controlled group are treated as a single entity for purposes of meet- 20 ing the definition of responsible party and are jointly and severally 21 liable for payment of any cost recovery demand owed by any entity in the 22 controlled group. 23 5. "Cost recovery demand" means a charge asserted against a responsi- 24 ble party for cost recovery payments under the program for payment to 25 the fund. 26 6. "Covered greenhouse gas emissions" means, with respect to any enti- 27 ty, the total quantity of greenhouse gases released into the atmosphere 28 during the covered period, expressed in metric tons of carbon dioxide 29 equivalent, as defined in section 75-0101 of this chapter, including but 30 not limited to releases of greenhouse gases resulting from the 31 extraction, storage, production, refinement, transport, manufacture, 32 distribution, sale, and use of fossil fuels or petroleum products 33 extracted, produced, refined, or sold by such entity. 34 7. "Covered period" means the period that began January first, two 35 thousand and ended on December thirty-first, two thousand eighteen. 36 8. "Crude oil" means oil or petroleum of any kind and in any form, 37 including bitumen, oil sands, heavy oil, conventional and unconventional 38 oil, shale oil, natural gas liquids, condensates, and related fossil 39 fuels. 40 9. "Entity" means any individual, trustee, agent, partnership, associ- 41 ation, corporation, company, municipality, political subdivision, or 42 other legal organization, including a foreign nation, that holds or held 43 an ownership interest in a fossil fuel business during the covered peri- 44 od. 45 10. "Fossil fuel" shall have the same definition as in section 1-103 46 of the energy law. 47 11. "Fossil fuel business" means a business engaging in the extraction 48 of fossil fuels or the refining of petroleum products. 49 12. "Fuel gases" shall have the same definition as in section 1-103 of 50 the energy law. 51 13. "Fund" means the climate change adaptation fund established pursu- 52 ant to section ninety-seven-m of the state finance law. 53 14. "Greenhouse gas" shall have the same definition as in section 54 75-0101 of this chapter. 55 15. "Nature-based solutions" shall mean projects that utilize or mimic 56 nature or natural processes and functions and that may also offer envi-A. 3351--B 5 1 ronmental, economic, and social benefits, while increasing resilience. 2 Nature-based solutions include both green and natural infrastructure. 3 16. "Notice of cost recovery demand" means the written communication 4 informing a responsible party of the amount of the cost recovery demand 5 payable to the fund. 6 17. "Petroleum products" shall have the same definition as in section 7 1-103 of the energy law. 8 18. "Program" means the climate change adaptation cost recovery 9 program established under section 76-0103 of this article. 10 19. "Qualifying expenditure" means an authorized payment from the fund 11 in support of a climate change adaptive infrastructure project, includ- 12 ing its operation and maintenance, as defined by the department. 13 20. "Responsible party" means any entity (or a successor in interest 14 to such entity described herein), which, during any part of the covered 15 period, was engaged in the trade or business of extracting fossil fuel 16 or refining crude oil and is determined by the department to be respon- 17 sible for more than one billion tons of covered greenhouse gas emis- 18 sions. The term responsible party shall not include any person who lacks 19 sufficient connection with the state to satisfy the nexus requirements 20 of the United States Constitution. 21 § 76-0103. The climate change adaptation cost recovery program. 22 1. There is hereby established a climate change adaptation cost recov- 23 ery program administered by the department. 24 2. The purposes of the program shall be the following: 25 a. To secure compensatory payments from responsible parties based on a 26 standard of strict liability to provide a source of revenue for climate 27 change adaptive infrastructure projects within the state. 28 b. To determine proportional liability of responsible parties pursuant 29 to subdivision three of this section; 30 c. To impose cost recovery demands on responsible parties and issue 31 notices of cost recovery demands; 32 d. To accept and collect payment from responsible parties; 33 e. To identify climate change adaptive infrastructure projects; 34 f. To disperse funds to climate change adaptive infrastructure 35 projects; and 36 g. To allocate funds in such a way as to achieve a goal that at least 37 forty percent of the qualified expenditures from the program, but not 38 less than thirty-five percent of such expenditures, shall go to climate 39 change adaptive infrastructure projects that benefit disadvantaged 40 communities as defined in section 75-0101 of this chapter. 41 3. a. A responsible party shall be strictly liable, without regard to 42 fault, for a share of the costs of climate change adaptive infrastruc- 43 ture projects, including their operation and maintenance, supported by 44 the fund. 45 b. With respect to each responsible party, the cost recovery demand 46 shall be equal to an amount that bears the same ratio to seventy-five 47 billion dollars as the responsible party's applicable share of covered 48 greenhouse gas emissions bears to the aggregate applicable shares of 49 covered greenhouse gas emissions of all responsible parties. 50 c. The applicable share of covered greenhouse gas emissions taken into 51 account under this section for any responsible party shall be the amount 52 by which the covered greenhouse gas emissions attributable to such 53 responsible party exceeds one billion metric tons. 54 d. Where an entity owns a minority interest in another entity of ten 55 percent or more, the calculation of the entity's applicable share of 56 greenhouse gas emissions taken into account under this section shallA. 3351--B 6 1 include the applicable share of greenhouse gas emissions taken into 2 account under this section by the entity in which the responsible party 3 holds a minority interest, multiplied by the percentage of the minority 4 interest held. 5 e. In determining the amount of greenhouse gas emissions attributable 6 to any entity, an amount equivalent to nine hundred forty-two and one- 7 half metric tons of carbon dioxide equivalent shall be treated as 8 released for every million pounds of coal attributable to such entity; 9 an amount equivalent to four hundred thirty-two thousand one hundred 10 eighty metric tons of carbon dioxide equivalent shall be treated as 11 released for every million barrels of crude oil attributable to such 12 entity; and an amount equivalent to fifty-three thousand four hundred 13 forty metric tons of carbon dioxide equivalent shall be treated as 14 released for every million cubic feet of fuel gases attributable to such 15 entity. 16 f. The commissioner may adjust the cost recovery demand amount of a 17 responsible party refining petroleum products (or who is a successor in 18 interest to such an entity) if such responsible party establishes to the 19 satisfaction of the commissioner that a portion of the cost recovery 20 demand amount was attributable to the refining of crude oil extracted by 21 another responsible party (or who is a successor in interest to such an 22 entity) that accounted for such crude oil in determining its cost recov- 23 ery demand amount. 24 g. Payment of a cost recovery demand shall be made in full on the 25 applicable payment date unless a responsible party elects to pay in 26 installments pursuant to paragraph h of this subdivision. 27 h. A responsible party may elect to pay the cost recovery demand 28 amount in twenty-four annual installments, eight percent of the total 29 due in the first installment and four percent of the total due in each 30 of the following twenty-three installments. If an election is made under 31 this paragraph, the first installment shall be paid on the applicable 32 payment date and each subsequent installment shall be paid on the same 33 date as the applicable payment date in each succeeding year. 34 i. If there is any addition to the original amount of the cost recov- 35 ery demand for failure to timely pay any installment required under this 36 subdivision, a liquidation or sale of substantially all the assets of 37 the responsible party (including in a proceeding under U.S. Code: Title 38 11 or similar case), a cessation of business by the responsible party, 39 or any similar circumstance, then the unpaid balance of all remaining 40 installments shall be due on the date of such event (or in the case of a 41 proceeding under U.S. Code: Title 11 or similar case, on the day before 42 the petition is filed). The preceding sentence shall not apply to the 43 sale of substantially all of the assets of a responsible party to a 44 buyer if such buyer enters into an agreement with the department under 45 which such buyer is liable for the remaining installments due under this 46 subdivision in the same manner as if such buyer were the responsible 47 party. 48 4. a. Within one year of the effective date of this article, the 49 department shall promulgate such regulations as are necessary to carry 50 out this article, including but not limited to: 51 i. adopting methodologies using the best available science to deter- 52 mine responsible parties and their applicable share of covered green- 53 house gas emissions consistent with the provisions of this article; 54 ii. registering entities that are responsible parties under the 55 program;A. 3351--B 7 1 iii. issuing notices of cost recovery demand to responsible parties 2 informing them of the cost recovery demand amount; how and where cost 3 recovery demands can be paid; the potential consequences of nonpayment 4 and late payment; and information regarding their rights to contest an 5 assessment; 6 iv. accepting payments from, pursuing collection efforts against, and 7 negotiating settlements with responsible parties; and 8 v. adopting procedures for identifying and selecting climate change 9 adaptive infrastructure projects eligible to receive qualifying expendi- 10 tures, including legislative budget appropriations, issuance of requests 11 for proposals from localities and not-for-profit and community organiza- 12 tions, grants to private individuals, or other methods as determined by 13 the department, and for dispersing moneys from the fund for qualifying 14 expenditures. When considering projects intended to stabilize tidal 15 shorelines, the department shall encourage the use of nature-based 16 solutions. Total qualifying expenditures shall be allocated in such a 17 way as to achieve a goal that at least forty percent of the qualified 18 expenditures from the program, but not less than thirty-five percent of 19 such expenditures, shall go to climate change adaptive infrastructure 20 projects that benefit disadvantaged communities as defined in section 21 75-0101 of this chapter. 22 b. The department shall hold at least two public hearings, one in-per- 23 son and one virtual, on proposed regulations, with a minimum of thirty 24 days' public notice in compliance with the provisions of article seven 25 of the public officers law. 26 5. Within two years of the effective date of this article, the depart- 27 ment shall complete a statewide climate change adaptation master plan 28 for the purpose of guiding the dispersal of funds in a timely, effi- 29 cient, and equitable manner to all regions of the state in accordance 30 with the provisions of this chapter. In completing such plan, the 31 department shall: 32 a. collaborate with the department of state, empire state development, 33 the department of agriculture and markets, the New York state energy 34 research and development authority, the department of public service, 35 and the New York independent systems operator; 36 b. assess the adaptation needs and vulnerabilities of various areas 37 vital to the state's economy, normal functioning, and the health and 38 well-being of New Yorkers, including but not limited to: agriculture, 39 biodiversity, ecosystem services, education, finance, healthcare, manu- 40 facturing, housing and real estate, retail, tourism (including state and 41 municipal parks), transportation, and municipal and local government. 42 c. identify major potential, proposed, and ongoing climate change 43 adaptive infrastructure projects throughout the state; 44 d. identify opportunities for alignment with existing federal, state, 45 and local funding streams; 46 e. consult with stakeholders, including local governments, businesses, 47 environmental advocates, relevant subject area experts, and represen- 48 tatives of disadvantaged communities; and 49 f. provide opportunities for public engagement in all regions of the 50 state. 51 6. The department, the department of taxation and finance, and the 52 attorney general are hereby authorized to implement and enforce the 53 provisions of this article. 54 7. The department or the department of taxation and finance shall 55 provide an opportunity to be heard to any responsible parties that seek 56 to contest a cost recovery demand. Determinations made in favor of aA. 3351--B 8 1 petitioner after such hearing shall be final and conclusive. A determi- 2 nation in favor of the state may be appealed under article seventy-eight 3 of the civil practice law and rules. 4 8. Moneys received from cost recovery demands shall be deposited in 5 the climate change adaptation fund established pursuant to section nine- 6 ty-seven-m of the state finance law. 7 9. a. The department shall conduct an independent evaluation of the 8 climate change adaptation cost recovery program. The purpose of this 9 evaluation is to determine the effectiveness of the program in achieving 10 its purposes as defined in subdivision two of this section. 11 b. Such evaluation shall be provided to the governor, the temporary 12 president of the senate and the speaker of the assembly on or before 13 January first of the second calendar year following the year in which 14 this article is enacted into law, and annually on or before September 15 thirtieth thereafter. 16 c. Any entity contracted by the department to conduct such evaluation 17 shall receive prompt payment of all moneys due upon completion of such 18 evaluation. 19 § 76-0105. Labor and job standards and worker protection. 20 1. All public entities involved in implementing projects funded 21 through the climate change adaptation cost recovery program shall assess 22 and implement strategies to increase employment opportunities and 23 improve job quality. Within one hundred twenty days of the effective 24 date of this section, the governor shall publish a report, accessible on 25 the state's website, which provides: 26 a. steps that will be taken to ensure compliance with this section, 27 including the department or office, or combination thereof, charged with 28 implementation of the provisions of this section; 29 b. regulations necessary to ensure the prioritization of the statewide 30 goal of creating good jobs and increasing employment opportunities; and 31 c. steps that will be taken with all public entities, including local 32 and county level governments, to implement a system to track compliance, 33 accept reports of non-compliance for enforcement action, and report 34 annually on the adoption of these standards to the legislature starting 35 one year from the effective date of this section. 36 2. For purposes of this section, "public entity" shall include the 37 state and all of its political subdivisions, including but not limited 38 to counties, municipalities, agencies, authorities, public benefit 39 corporations, public trusts, and local development corporations as 40 defined in subdivision eight of section eighteen hundred one of the 41 public authorities law or section fourteen hundred eleven of the not- 42 for-profit corporation law, a municipal corporation as defined in 43 section one hundred nineteen-n of the general municipal law, an indus- 44 trial development agency formed pursuant to article eighteen-A of the 45 general municipal law or industrial development authorities formed 46 pursuant to article eight of the public authorities law, and any state, 47 local or interstate or international authorities as defined in section 48 two of the public authorities law; and shall include any trust created 49 by any such entities. 50 3. In considering and issuing permits, licenses, regulations, 51 contracts and other administrative approvals and decisions necessary for 52 implementation of projects funded in whole, or in part, through the 53 climate change adaptation cost recovery program, all public entities 54 shall apply the following standards: 55 a. For any construction work, the payment of no less than prevailing 56 wages for all employees of any contractors and subcontractors, consist-A. 3351--B 9 1 ent with sections two hundred twenty, two hundred twenty-a, two hundred 2 twenty-b, two hundred twenty-i, two hundred twenty-three, and two 3 hundred twenty-four-b of the labor law, and building services, consist- 4 ent with article nine of the labor law; where a recipient of financial 5 assistance contracts building service work or operations and maintenance 6 work to a building service contractor, the contractor is held to the 7 same obligations with respect to prevailing wages as the recipient. The 8 recipient must include terms establishing this obligation within any 9 contract signed with a contractor. 10 b. (i) Any public entity receiving at least five million dollars from 11 funds allocated pursuant to the climate change adaptation cost recovery 12 program for a project which involves the construction, reconstruction, 13 alteration, maintenance, moving, demolition, excavation, development or 14 other improvement of any building, structure or land, shall be subject 15 to section two hundred twenty-two of the labor law. 16 (ii) Any privately owned project receiving funds allocated pursuant to 17 the climate change adaptation cost recovery program which utilizes a 18 project labor agreement on such project shall not be subject to article 19 eight of the labor law. 20 c. The inclusion of contract language requiring contractors to estab- 21 lish labor harmony policies. The public entity may require a private 22 owner, or a third party acting on such owner's behalf, as a condition of 23 receiving funds pursuant to the climate change adaptation cost recovery 24 program, to stipulate to the public entity that it will enter into a 25 labor peace agreement with at least one bona fide labor organization 26 either where such bona fide labor organization is actively representing 27 employees in such job-type or, upon notice, by a bona fide labor organ- 28 ization that is attempting to represent employees in such job-type. For 29 purposes of this section "labor peace agreement" means an agreement 30 between an entity and labor organization that, at a minimum, protects 31 the state's proprietary interests by prohibiting labor organizations and 32 members from engaging in work stoppages, boycotts, and any other econom- 33 ic interference with the relevant project or program. 34 d. (i) The inclusion of contract language with a provision that the 35 iron, steel, aluminum, glass, copper, manufactured products, and 36 construction products, including without limitation, vehicles, omnibus- 37 es, school buses, trucks, construction equipment, earth moving equip- 38 ment, cranes, drilling equipment, rolling stock, train control equip- 39 ment, communication equipment, traction power equipment, rolling stock 40 prototypes, rolling stock frames, rolling stock car shells, batteries, 41 charging equipment, fuel cells, fueling equipment, turbines, nacelles, 42 blades, rotors, generators, motors, hubs, cable, conduit, controllers, 43 towers, photovoltaic cells, solar panels, meters, inverters, pipe, 44 tubing, fittings, tanks, flanges, valves, concrete, rebar, brick, aggre- 45 gate, concrete block, cement, timber, lumber, tile, and drywall used or 46 supplied in the performance of the contract or any subcontract thereto, 47 shall be produced or made in whole or substantial part in the United 48 States, its territories or possessions. In the case of an iron, steel, 49 or aluminum product, all manufacturing must take place in the United 50 States, from the initial melting stage through the application of coat- 51 ings, except metallurgical processes involving the refinement of steel 52 additives. 53 (ii) The provisions of subparagraph (i) of this paragraph shall not 54 apply in any case or category of cases in which the head of the 55 contracting public entity finds that: (1) applying subparagraph (i) of 56 this paragraph would be inconsistent with the public interest; (2)A. 3351--B 10 1 products are not produced in the United States in sufficient and reason- 2 ably available quantities and of a satisfactory quality; or (3) inclu- 3 sion of products produced in the United States will increase the cost of 4 the overall project by more than twenty-five percent. If the head of the 5 contracting public entity receives a request for a waiver under this 6 subdivision, such person shall make available to the public on an 7 informal basis a copy of the request and information available to such 8 person concerning the request, and shall allow for informal public input 9 on the request for at least fifteen days prior to making a finding based 10 on the request. The head of the contracting public entity shall make the 11 request and accompanying information available by electronic means, 12 including on the official public website of the public entity. The 13 provisions of subparagraph (i) of this paragraph shall not apply for 14 products purchased prior to the effective date of this article. 15 (iii) The head of the contracting public entity may, at the contract- 16 ing entity's sole discretion, provide for a solicitation of a request 17 for proposal, invitation for bid, or solicitation of proposal, or any 18 other method provided for by law or regulation for soliciting a response 19 from offerors intending to result in a contract pursuant to this para- 20 graph involving a competitive process in which the evaluation of compet- 21 ing bids gives significant consideration in the evaluation process to 22 the procurement of equipment and supplies from businesses located in New 23 York state. 24 e. Apprenticeship and workforce development utilization: (i) wherever 25 possible, contractors and subcontractors should be required to partic- 26 ipate in apprenticeship programs, registered in accordance with article 27 twenty-three of the labor law, in the trades in which they are perform- 28 ing work; (ii) for industries without apprenticeship programs, the use 29 of workforce training, preferably in conjunction with a bona fide labor 30 organization, shall be required; and (iii) encouragement of registered 31 pre-apprenticeship direct entry programs for the recruitment of local 32 and/or disadvantaged workers. 33 f. Notwithstanding any provision of law to the contrary, all rights or 34 benefits, including terms and conditions of employment, and protection 35 of civil service and collective bargaining status of all existing public 36 employees shall be preserved and protected. Nothing in this section 37 shall result in the: (i) displacement of any currently employed worker 38 or loss of position (including partial displacement such as a reduction 39 in the hours of non-overtime work, wages, or employment benefits) or 40 result in the impairment of existing collective bargaining agreements; 41 (ii) transfer of existing duties and functions related to maintenance 42 and operations currently performed by existing employees of authorized 43 entities to a contracting entity; or (iii) transfer of future duties and 44 functions ordinarily performed by employees of authorized entities to a 45 contracting entity. 46 4. a. Any public entity requesting bids or awarding contracts for 47 renewable energy projects, energy efficiency projects, or other projects 48 funded by the climate change adaptation cost recovery program, except 49 for construction projects, shall require any applicant, bidder, or 50 responder to submit a New York jobs plan as part of its application, bid 51 or response. The department of environmental conservation, in consulta- 52 tion with the department of labor, shall develop all forms, procedures, 53 evaluation and scoring criteria, and guidance, necessary for the imple- 54 mentation of the New York jobs plan. To the extent feasible, the depart- 55 ment of environmental conservation, in consultation with the departmentA. 3351--B 11 1 of labor, shall consider the input and recommendations of relevant 2 public entities on the development of the New York jobs plan. 3 b. The New York jobs plan shall require applicants, bidders, and 4 responders to provide information on jobs that would result from being 5 awarded the bid or contract for such projects. At a minimum, this shall 6 include the following information for nonsupervisory positions, broken 7 down by classification: 8 (i) The number of full-time non-temporary jobs retained, and the 9 number to be created. 10 (ii) The number of positions classified as employees, as defined in 11 section seven hundred forty of the labor law, and positions classified 12 as independent contractors. 13 (iii) The number of jobs to be specifically reserved for individuals 14 facing barriers to employment and the number to be reserved for individ- 15 uals from disadvantaged communities. 16 (iv) The minimum wages and fringe benefits amounts to be paid. 17 (v) The proposed amounts for worker training and information about any 18 existing apprenticeship program registered with the department or a 19 federally recognized state apprenticeship agency that complies with the 20 requirements under Parts 29 and 30 of title 29, code of federal regu- 21 lations. 22 (vi) In the event that a federal authority specifically authorizes use 23 of a geographic preference or when covered public contracts are funded 24 exclusively through state or local funds, the New York jobs plan shall 25 require information on the number of local jobs to be created. 26 c. Awarding public entities shall require the same New York jobs plan 27 information to be submitted from all known subcontractors at the time of 28 the solicitation or bid for the project is released. 29 d. New York jobs plan commitments shall be included in the contract 30 awarded by the public entity or its contractors as a material term. 31 e. For non-competitive public contracts awarded under this article, 32 applicants, bidders, or responders shall create a New York jobs plan as 33 set forth in this section. For competitive public contracts, public 34 entities shall award contracts using a competitive best-value bid 35 procurement process. The applicants', bidders', or responders' New York 36 jobs plan shall be scored as a part of the overall application for the 37 public contract, awarding additional consideration to applicants, 38 bidders, or responders who do any of the following: 39 (i) Have the greatest beneficial economic impact on the state and 40 local economies as a result of receiving the public contract, based on 41 the priority criteria outlined in its New York jobs plan. 42 (ii) Enhance the state's commitment to energy conservation, pollution 43 and greenhouse gas emissions reduction, and transportation efficiency. 44 (iii) Retain the greatest number of full-time, non-temporary employees 45 compensated at a wage rate for the project jurisdiction as established 46 in the living wage calculator published by the Massachusetts Institute 47 of Technology, using the living wage rate for a household of two working 48 adults with two children in the jurisdiction of the project. 49 (iv) Make concrete commitments to creating the greatest number of 50 full-time, non-temporary jobs compensating employees at a wage rate at 51 or above the living wage rate for the project jurisdiction as estab- 52 lished in the living wage calculator published by the Massachusetts 53 Institute of Technology, using the living wage rate for a household of 54 two working adults with two children in the jurisdiction of the project. 55 (v) Commit to at least ninety percent of the labor on the contract 56 being performed by workers classified as employees.A. 3351--B 12 1 (vi) Offer targeted training and opportunities for individuals facing 2 barriers to employment and workers from disadvantaged communities. 3 f. The department, in consultation with the department of labor, shall 4 develop a web-based portal to track New York jobs plan commitments and 5 compliance. 6 (i) All New York jobs plan commitments and compliance reporting shall 7 be viewable by the public, through the web-based portal. 8 (ii) Recipients of public contracts shall, on an annual basis, be 9 required to upload progress reports on each of the commitments included 10 in their New York jobs plan application, for the duration of the covered 11 public contract. 12 g. Noncompliance with New York jobs plan commitments would violate the 13 terms of the public contract. At a minimum these commitments would be 14 enforceable through standard breach of contract remedies, including but 15 not limited to, termination of the public contract. 16 5. Nothing set forth in this section shall be construed to impede, 17 infringe, or diminish the rights and benefits which accrue to employees 18 through bona fide collective bargaining agreements, or otherwise dimin- 19 ish the integrity of the existing collective bargaining relationship. 20 6. Nothing set forth in this section shall preclude a public entity 21 from setting additional requirements or standards in addition to those 22 set forth in this article. 23 § 4. The state finance law is amended by adding a new section 97-m to 24 read as follows: 25 § 97-m. Climate change adaptation fund. 1. There is hereby established 26 in the custody of the comptroller and the commissioner of taxation and 27 finance a special revolving fund to be known as the "climate change 28 adaptation fund" for the purpose of receiving moneys through cost recov- 29 ery demands and issuing funds for qualifying expenditures pursuant to 30 the climate change adaptation cost recovery program established in arti- 31 cle seventy-six of the environmental conservation law. 32 2. No monies shall be expended from the fund for any project except 33 qualifying expenditures pursuant to the program, including their opera- 34 tion and maintenance. 35 3. Revenues in the fund shall be kept separate and shall not be 36 commingled with any other moneys in the custody of the comptroller or 37 the commissioner of taxation and finance. All deposits of such revenues 38 shall, if required by the comptroller, be secured by obligations of the 39 United States or of the state having a market value equal at all times 40 to the amount of such deposits and all banks and trust companies are 41 authorized to give security for such deposits. Any such revenues in such 42 fund may, upon the discretion of the comptroller, be invested in obli- 43 gations in which the comptroller is authorized to invest pursuant to 44 section ninety-eight-a of this article. 45 4. All payments of moneys from the fund shall be made on the audit and 46 warrant of the comptroller. 47 § 5. Availability of additional remedies. Nothing in this act shall be 48 deemed to preclude the pursuit of a civil action or other remedy by any 49 person. The remedies provided in this act are in addition to those 50 provided by existing statutory or common law. 51 § 6. Severability. If any word, phrase, clause, sentence, paragraph, 52 section, or part of this act shall be adjudged by any court of competent 53 jurisdiction to be invalid, such judgment shall not affect, impair, or 54 invalidate the remainder thereof, but shall be confined in its operation 55 to the word, phrase, clause, sentence, paragraph, section, or part ther-A. 3351--B 13 1 eof directly involved in the controversy in which such judgment shall 2 have been rendered. 3 § 7. Construction. This act, being necessary for the general health, 4 safety, and welfare of the people of this state, shall be liberally 5 construed to effect its purpose. 6 § 8. This act shall take effect immediately.