Bill Text: NY A04056 | 2023-2024 | General Assembly | Amended
Bill Title: Creates climate liability for fossil fuel related activity which caused or contributed to climate change; creates a right of action.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced) 2024-01-11 - print number 4056a [A04056 Detail]
Download: New_York-2023-A04056-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4056--A 2023-2024 Regular Sessions IN ASSEMBLY February 9, 2023 ___________ Introduced by M. of A. SOLAGES, GALLAGHER, EPSTEIN, RAGA, SHRESTHA, DE LOS SANTOS -- read once and referred to the Committee on Environ- mental Conservation -- 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 committee AN ACT to amend the general business law, in relation to creating climate liability for dangers to safety and health caused by certain fossil fuel related activities The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The legislature finds that the consequences of a changing 2 climate directly impact New York state. Around the world thousands of 3 scientific studies have documented changes in air and water temper- 4 atures, melting glaciers, diminishing snow cover, shrinking sea ice, 5 rising sea levels, ocean acidification, and increasing atmospheric water 6 vapor. Warming trends and incidences of intense heat waves will 7 contribute to greater localized heat stresses; heavy rainfall events 8 that exacerbate localized flooding will continue to impact food 9 production, natural ecosystems, and water resources; and sea-level rise 10 will increasingly threaten sensitive coastal communities and ecosystems. 11 Climate change is adversely affecting New York's economic well-being, 12 public health, natural resources, and environment. 13 To achieve the goals of the Climate Leadership and Community 14 Protection Act (hereinafter the "Climate Act") that include 70% renewa- 15 ble electricity by 2030, 100% zero-emission electricity by 2040, a 40% 16 reduction in statewide GHG emissions from 1990 levels by 2030, an 85% 17 reduction in statewide GHG emissions from 1990 levels by 2050, and net 18 zero emissions statewide by 2050, the New York State Climate Action 19 Council (the "Council") determined in its Scoping Plan for the Climate 20 Act that "[i]t is imperative that New York take immediate action to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01983-03-4A. 4056--A 2 1 aggressively reduce GHG emissions as well as invest in resiliency meas- 2 ures." Although the plan is not authoritative on the full scope of 3 damage, the cost of not taking immediate and aggressive action, accord- 4 ing to the Council, is approximately $115 billion dollars. 5 The public health impacts of GHG and co-pollutant emissions are simi- 6 larly devastating. Increased heat stress (such as heat edema, heat 7 stroke, heat cramps, heat stress, and dehydration) and other heat-relat- 8 ed morbidity and mortality; exacerbation of respiratory conditions 9 (including pneumonia, asthma, and chronic obstructive pulmonary disease) 10 and cardiovascular disease; increased duration and severity of allergy 11 symptoms due to increased duration and intensity of pollen season; 12 increased risk for vector-borne diseases (such as Lyme disease, West 13 Nile virus, and other pathogens); increased risk of injury and death 14 following extreme precipitation events and flooding (or, conversely, 15 after droughts); rising sea levels that threaten infrastructure; the 16 saltwater intrusion of the State's groundwater resources (which may 17 impact drinking water supplies); and poor indoor air quality (such as 18 mold and moisture) are just some of those impacts. Additionally, 19 climate-driven impacts are magnified in New York's historically margi- 20 nalized communities that have been disproportionately affected by and 21 are on the front lines of climate change. 22 The legislature finds that the New York Constitution grants every New 23 Yorker the right to mitigate these impacts. Article I, Section 19 of 24 the New York State Constitution reads: "Each person shall have a right 25 to clean air and water, and a healthful environment." Overwhelmingly 26 approved by the voters in 2021, this "green amendment" to our constitu- 27 tion placed a right to a healthful environment alongside the freedom of 28 speech, religion, and property in our Bill of Rights. As such, every 29 New Yorker should have the tools to best utilize that right. This bill 30 seeks to provide them with at least one tool. 31 The legislature also finds that there has been a scientific consensus 32 for several decades that climate change is occurring exemplified by the 33 testimony of Dr. James Hansen of the National Aeronautics and Space 34 Administration in June 1988 to the U.S. Senate and the formation later 35 that year of the United Nations Intergovernmental Panel on Climate 36 Change. 37 The legislature further finds that the fossil fuel industry has known 38 for decades that their products overwhelmingly contributed to and accel- 39 erated climate change, yet they have - and continue to - lie about this 40 fact to the public. Documents unveiled by litigation and investigative 41 journalists demonstrate that as early as the 1950s, the industry became 42 aware of the potentially catastrophic impact of its products and even in 43 the face of scientific consensus shortly thereafter and research 44 conducted by their own scientists affirming the impacts of their busi- 45 ness, the industry outright denied that climate change was real, spread 46 disinformation to cast doubt on the science, dismissed regulatory action 47 as insufficient (after no longer being able to deny climate change 48 outright), and currently advertise "green" efforts to the public that 49 mask the industry's lack of real investment in resiliency and energy- 50 source transition. A December 2022 report by the Oversight Committee in 51 Congress also revealed internal documents from senior leaders in the 52 industry where, among other things, they explicitly reject taking 53 accountability for the emissions of their products. 54 By conduct and impact, the industry has intentionally obfuscated the 55 truth about climate change and outright deceived the public in order to 56 continue dependence on their products. The legislature finds that thisA. 4056--A 3 1 conduct and the subsequent impact on the public is not political speech, 2 but fundamentally commercial activity with incidental political impact. 3 We also find this conduct to be a substantial factor in affecting the 4 public's perception of the threat of climate change, scientific consen- 5 sus notwithstanding. 6 New Yorkers should have the ability to hold those responsible for 7 climate change accountable for their deceptive practices and the cata- 8 clysmic impacts these practices have yielded. This bill seeks to provide 9 them with that opportunity. 10 § 2. The general business law is amended by adding a new article 20-B 11 to read as follows: 12 ARTICLE 20-B 13 FOSSIL FUEL RELATED ACTIVITIES 14 Section 328. Definitions. 15 328-a. Fossil fuel industry member climate liability. 16 328-b. Defense to liability. 17 328-c. Right of action. 18 § 328. Definitions. For purposes of this article, the following terms 19 shall have the following meanings: 20 1. "Covered period" shall mean the period from January first, nineteen 21 eighty-nine to the effective date of this article. 22 2. "Fossil fuel industry member" shall mean a firm, corporation, 23 company, partnership, society, joint stock company or any other entity 24 or association that emitted or caused to be emitted through the extract- 25 ing, storing, transporting, refining, importing, exporting, producing, 26 manufacturing, distributing, compounding, marketing, or offering for 27 wholesale or retail sale, a qualified product with total greenhouse gas 28 emissions of at least one billion metric tons of carbon dioxide equiv- 29 alent during the covered period. It shall not include any public utili- 30 ty, public authority, or the state of New York or its political subdivi- 31 sions. 32 3. "Qualified product" shall mean a fossil fuel product including, but 33 not limited to: 34 (a) crude petroleum oil and all other hydrocarbons, regardless of 35 gravity, that are produced at the wellhead in liquid form by ordinary 36 production methods. 37 (b) natural, manufactured, mixed, and byproduct hydrocarbon gas. 38 (c) refined crude oil, crude tops, topped crude, processed crude, 39 processed crude petroleum, residue from crude petroleum, cracking stock, 40 uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, 41 casinghead gasoline, natural-gas gasoline, kerosene, benzine, wash oil, 42 waste oil, blended gasoline, lubricating oil, and blends or mixtures of 43 oil with one or more liquid products or byproducts derived from oil or 44 gas. 45 (d) any physical waste generated in the extracting, storing, trans- 46 porting, refining, importing, producing, manufacturing, distributing, or 47 compounding a qualified product defined in paragraphs (a), (b), and/or 48 (c) of this subdivision which contains or is contaminated by any quali- 49 fied product defined in paragraphs (a), (b), and/or (c) of this subdivi- 50 sion or any substance appearing on a list within regulations promulgated 51 by the department of environmental conservation pursuant to section 52 37-0101 of the environmental conservation law. 53 4. "Reasonable controls and procedures" shall mean policies that 54 include, but are not limited to: (a) instituting business practices to 55 prevent pollution, including but not limited to the release of green- 56 house gases which contribute to climate change and emissions whichA. 4056--A 4 1 contribute to adverse health impacts; and (b) preventing deceptive acts 2 and practices and false advertising and otherwise ensuring compliance 3 with all provisions of article twenty-two-A of this chapter. Acts or 4 practices related to environmental commitment, performance, or sustaina- 5 bility shall also be subject to this subdivision and shall be clear, 6 objective, and verifiable. The net impression of such acts and practices 7 shall not mislead a reasonable person about the fossil fuel industry 8 member's environmental commitment, performance, or sustainability. This 9 subdivision may not be construed to impose liability on any speech or 10 conduct protected by the first amendment of the United States Constitu- 11 tion, as made applicable to the states through the United States Supreme 12 Court's interpretation of the fourteenth amendment of the United States 13 Constitution. 14 5. "Deceptive acts or practices" shall mean those acts and practices 15 which are unlawful pursuant to article twenty-two-A of this chapter. 16 6. "False advertising" shall have the same meaning as defined in arti- 17 cle twenty-two-A of this chapter. 18 § 328-a. Fossil fuel industry member climate liability. Any fossil 19 fuel industry member whose conduct has caused or contributed to climate 20 change in New York state, whether directly or indirectly, shall be 21 liable for damages under this article. 22 § 328-b. Defense to liability. Any fossil fuel industry member that 23 establishes and implements reasonable controls and procedures may offer 24 evidence of those controls and procedures to limit the liability imposed 25 under section three hundred twenty-eight-a of this article; provided, 26 however, such evidence shall not be a complete defense to liability. 27 When determining the impact of such controls and procedures as a defense 28 to liability, a court may consider the duration that such controls and 29 procedures are in place in relation to the duration of the conduct in 30 violation of section three hundred twenty-eight-a of this article or any 31 other means of measuring the mitigating effects of any controls and 32 procedures relative to the complete impact of the underlying conduct. 33 § 328-c. Right of action. Any person, government entity, firm, corpo- 34 ration or association that has been damaged as a result of a fossil fuel 35 industry member's conduct as described in section three hundred twenty- 36 eight-a of this article shall be entitled to bring an action for recov- 37 ery of damages in: 38 1. the county in which all or a substantial part of the events or 39 omissions giving rise to the claim occurred; 40 2. the county of residence for any one of the natural person defend- 41 ants at the time the cause of action accrued; 42 3. the county of the principal office in this state of any one of the 43 defendants that is not a natural person; or 44 4. the county of residence for any plaintiff if the plaintiff is a 45 natural person residing in this state. 46 § 3. Severability. If any clause, sentence, paragraph, subdivision, 47 section or part of this act shall be adjudged by any court of competent 48 jurisdiction to be invalid, such judgment shall not affect, impair, or 49 invalidate the remainder thereof, but shall be confined in its operation 50 to the clause, sentence, paragraph, subdivision, section or part thereof 51 directly involved in the controversy in which such judgment shall have 52 been rendered. It is hereby declared to be the intent of the legislature 53 that this act would have been enacted even if such invalid provisions 54 had not been included herein. 55 § 4. This act shall take effect immediately.
