S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4056
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 9, 2023
                                ___________
 
 Introduced  by M. of A. SOLAGES -- read once and referred to the Commit-
   tee on Environmental Conservation
 
 AN ACT to amend the  general  business  law,  in  relation  to  creating
   climate  negligence 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:
 
   Section  1.  The legislature finds that the consequences of a changing
 climate directly impact New York state. Around the  world  thousands  of
 scientific  studies  have  documented  changes  in air and water temper-
 atures, melting glaciers, diminishing snow  cover,  shrinking  sea  ice,
 rising sea levels, ocean acidification, and increasing atmospheric water
 vapor.    Warming  trends  and  incidences  of  intense  heat waves will
 contribute to greater localized heat  stresses;  heavy  rainfall  events
 that   exacerbate  localized  flooding  will  continue  to  impact  food
 production, natural ecosystems, and water resources; and sea-level  rise
 will increasingly threaten sensitive coastal communities and ecosystems.
 Climate  change  is  adversely affecting New York's economic well-being,
 public health, natural resources, and environment.
   To  achieve  the  goals  of  the  Climate  Leadership  and   Community
 Protection  Act (hereinafter the "Climate Act") that include 70% renewa-
 ble electricity by 2030, 100% zero-emission electricity by 2040,  a  40%
 reduction  in  statewide  GHG emissions from 1990 levels by 2030, an 85%
 reduction in statewide GHG emissions from 1990 levels by 2050,  and  net
 zero  emissions  statewide  by  2050,  the New York State Climate Action
 Council (the "Council") determined in its Scoping Plan for  the  Climate
 Act  that  "[i]t  is  imperative  that New York take immediate action to
 aggressively reduce GHG emissions as well as invest in resiliency  meas-
 ures." The cost of not taking immediate and aggressive action, according
 to the Council, is approximately $115 billion dollars.
   The  public health impacts of GHG and co-pollutant emissions are simi-
 larly devastating. Increased heat  stress  (such  as  heat  edema,  heat
 stroke, heat cramps, heat stress, and dehydration) and other heat-relat-
 ed  morbidity  and  mortality;  exacerbation  of  respiratory conditions
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01983-01-3
 A. 4056                             2
 
 (including pneumonia, asthma, and chronic obstructive pulmonary disease)
 and cardiovascular disease; increased duration and severity  of  allergy
 symptoms  due  to  increased  duration  and  intensity of pollen season;
 increased  risk  for  vector-borne  diseases (such as Lyme disease, West
 Nile virus, and other pathogens); increased risk  of  injury  and  death
 following  extreme  precipitation  events  and flooding (or, conversely,
 after droughts); rising sea levels  that  threaten  infrastructure;  the
 saltwater  intrusion  of  the  State's  groundwater resources (which may
 impact drinking water supplies); and poor indoor air  quality  (such  as
 mold  and  moisture)  are  just  some  of  those  impacts. Additionally,
 climate-driven impacts are magnified in New York's  historically  margi-
 nalized  communities  that  have been disproportionately affected by and
 are on the front lines of climate change.
   The legislature finds that the New York Constitution grants every  New
 Yorker  the  right  to mitigate these impacts.  Article I, Section 19 of
 the New York State Constitution reads: "Each person shall have  a  right
 to  clean  air  and  water, and a healthful environment." Overwhelmingly
 approved by the voters in 2021, this "green amendment" to our  constitu-
 tion  placed a right to a healthful environment alongside the freedom of
 speech, religion, and property in our Bill of Rights.   As  such,  every
 New  Yorker should have the tools to best utilize that right.  This bill
 seeks to provide them with at least one tool.
   The legislature further finds that the fossil fuel industry has  known
 for decades that their products overwhelmingly contributed to and accel-
 erated climate change, yet they have - and continue to -  lie about this
 fact  to  the public. Documents unveiled by litigation and investigative
 journalists demonstrate that as early as the 1950s, the industry  became
 aware of the potentially catastrophic impact of its products and even in
 the  face  of  scientific  consensus  shortly  thereafter  and  research
 conducted by their own scientists affirming the impacts of  their  busi-
 ness,  the industry outright denied that climate change was real, spread
 disinformation to cast doubt on the science, dismissed regulatory action
 as insufficient (after no longer  being  able  to  deny  climate  change
 outright),  and  currently  advertise "green" efforts to the public that
 mask the industry's lack of real investment in  resiliency  and  energy-
 source  transition. A December 2022 report by the Oversight Committee in
 Congress also revealed internal documents from  senior  leaders  in  the
 industry  where,  among  other  things,  they  explicitly  reject taking
 accountability for the emissions of their products.
   By conduct and impact, the industry has intentionally  obfuscated  the
 truth  about climate change and outright deceived the public in order to
 continue dependence on their products. The legislature finds  that  this
 conduct and the subsequent impact on the public is not political speech,
 but  fundamentally commercial activity with incidental political impact.
 We also find this conduct to be a substantial factor  in  affecting  the
 public's  perception of the threat of climate change, scientific consen-
 sus notwithstanding.
   New Yorkers should have the ability  to  hold  those  responsible  for
 climate  change  accountable for their deceptive practices and the cata-
 clysmic impacts these practices have yielded. This bill seeks to provide
 them with that opportunity.
   § 2. The general business law is amended by adding a new article  20-B
 to read as follows:
                               ARTICLE 20-B
                       FOSSIL FUEL RELATED ACTIVITIES
 SECTION 328.   DEFINITIONS.
 A. 4056                             3
 
         328-A. FOSSIL FUEL INDUSTRY MEMBER OBLIGATIONS.
         328-B. CLIMATE NEGLIGENCE.
         328-C. GOVERNMENTAL ENFORCEMENT PROHIBITED.
         328-D. PRIVATE RIGHT OF ACTION.
   § 328. DEFINITIONS.  FOR PURPOSES OF THIS ARTICLE, THE FOLLOWING TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1. "FOSSIL FUEL INDUSTRY MEMBER" SHALL MEAN  A  PERSON,  FIRM,  CORPO-
 RATION,  COMPANY, PARTNERSHIP, SOCIETY, JOINT STOCK COMPANY OR ANY OTHER
 ENTITY OR ASSOCIATION WITH  TOTAL  ANNUAL  REVENUES  IN  EXCESS  OF  ONE
 BILLION  DOLLARS ENGAGED IN EXTRACTING, STORING, TRANSPORTING, REFINING,
 IMPORTING, EXPORTING, PRODUCING, MANUFACTURING, DISTRIBUTING,  COMPOUND-
 ING,  MARKETING,  OR  OFFERING FOR WHOLESALE OR RETAIL SALE, A QUALIFIED
 PRODUCT.
   2. "QUALIFIED PRODUCT" SHALL MEAN A FOSSIL FUEL PRODUCT INCLUDING, BUT
 NOT LIMITED TO:
   (A) CRUDE PETROLEUM OIL AND  ALL  OTHER  HYDROCARBONS,  REGARDLESS  OF
 GRAVITY,  THAT  ARE  PRODUCED AT THE WELLHEAD IN LIQUID FORM BY ORDINARY
 PRODUCTION METHODS.
   (B) NATURAL, MANUFACTURED, MIXED, AND BYPRODUCT HYDROCARBON GAS.
   (C) REFINED CRUDE OIL, CRUDE  TOPS,  TOPPED  CRUDE,  PROCESSED  CRUDE,
 PROCESSED CRUDE PETROLEUM, RESIDUE FROM CRUDE PETROLEUM, CRACKING STOCK,
 UNCRACKED  FUEL  OIL,  FUEL  OIL,  TREATED CRUDE OIL, RESIDUUM, GAS OIL,
 CASINGHEAD GASOLINE, NATURAL-GAS GASOLINE, KEROSENE, BENZINE, WASH  OIL,
 WASTE  OIL, BLENDED GASOLINE, LUBRICATING OIL, AND BLENDS OR MIXTURES OF
 OIL WITH ONE OR MORE LIQUID PRODUCTS OR BYPRODUCTS DERIVED FROM  OIL  OR
 GAS.
   (D)  ANY  PHYSICAL  WASTE GENERATED IN THE EXTRACTING, STORING, TRANS-
 PORTING, REFINING, IMPORTING, PRODUCING, MANUFACTURING, DISTRIBUTING, OR
 COMPOUNDING A QUALIFIED PRODUCT DEFINED IN PARAGRAPHS (A),  (B),  AND/OR
 (C)  OF THIS SUBDIVISION WHICH CONTAINS OR IS CONTAMINATED BY ANY QUALI-
 FIED PRODUCT DEFINED IN PARAGRAPHS (A), (B), AND/OR (C) OF THIS SUBDIVI-
 SION OR ANY SUBSTANCE APPEARING ON A LIST WITHIN REGULATIONS PROMULGATED
 BY THE DEPARTMENT OF  ENVIRONMENTAL  CONSERVATION  PURSUANT  TO  SECTION
 37-0101 OF THE ENVIRONMENTAL CONSERVATION LAW.
   3.  "REASONABLE  CONTROLS  AND  PROCEDURES"  SHALL  MEAN POLICIES THAT
 INCLUDE, BUT ARE NOT LIMITED TO: (A) INSTITUTING BUSINESS  PRACTICES  TO
 PREVENT  POLLUTION  IN  NEW YORK STATE, INCLUDING BUT NOT LIMITED TO THE
 RELEASE OF GREENHOUSE GASES WHICH CONTRIBUTE TO CLIMATE CHANGE AND EMIS-
 SIONS WHICH CONTRIBUTE TO ADVERSE HEALTH  IMPACTS;  AND  (B)  PREVENTING
 DECEPTIVE  ACTS AND PRACTICES AND FALSE ADVERTISING AND OTHERWISE ENSUR-
 ING COMPLIANCE WITH ALL PROVISIONS OF ARTICLE TWENTY-TWO-A OF THIS CHAP-
 TER. ACTS OR PRACTICES RELATED TO ENVIRONMENTAL COMMITMENT, PERFORMANCE,
 OR SUSTAINABILITY SHALL ALSO BE SUBJECT TO THIS SUBDIVISION AND SHALL BE
 CLEAR, OBJECTIVE, AND VERIFIABLE. THE NET IMPRESSION OF  SUCH  ACTS  AND
 PRACTICES  SHALL  NOT  MISLEAD A REASONABLE PERSON ABOUT THE FOSSIL FUEL
 INDUSTRY MEMBER'S ENVIRONMENTAL COMMITMENT, PERFORMANCE, OR SUSTAINABIL-
 ITY.  THIS SUBDIVISION MAY NOT BE CONSTRUED TO IMPOSE LIABILITY  ON  ANY
 SPEECH  OR CONDUCT PROTECTED BY THE FIRST AMENDMENT OF THE UNITED STATES
 CONSTITUTION, AS MADE APPLICABLE TO THE STATES THROUGH THE UNITED STATES
 SUPREME COURT'S INTERPRETATION OF THE FOURTEENTH AMENDMENT OF THE UNITED
 STATES CONSTITUTION.
   4. THE TERMS "KNOWINGLY" AND "RECKLESSLY" SHALL HAVE THE SAME  MEANING
 AS DEFINED IN SECTION 15.05 OF THE PENAL LAW.
   5.  "DECEPTIVE  ACTS OR PRACTICES" SHALL MEAN THOSE ACTS AND PRACTICES
 WHICH ARE UNLAWFUL PURSUANT TO ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
 A. 4056                             4
 
   6. "FALSE ADVERTISING" SHALL HAVE THE SAME MEANING AS DEFINED IN ARTI-
 CLE TWENTY-TWO-A OF THIS CHAPTER.
   §  328-A.  FOSSIL  FUEL INDUSTRY MEMBER OBLIGATIONS. 1. NO FOSSIL FUEL
 INDUSTRY MEMBER  SHALL  KNOWINGLY  OR  RECKLESSLY  CREATE,  MAINTAIN  OR
 CONTRIBUTE TO A CONDITION IN NEW YORK STATE THAT ENDANGERS THE SAFETY OR
 HEALTH  OF  THE PUBLIC, WHETHER DIRECTLY OR INDIRECTLY, THROUGH EXTRACT-
 ING, STORING, TRANSPORTING, REFINING, IMPORTING,  EXPORTING,  PRODUCING,
 MANUFACTURING,  DISTRIBUTING,  COMPOUNDING,  MARKETING,  OR OFFERING FOR
 WHOLESALE OR RETAIL SALE, A QUALIFIED PRODUCT.
   2. EACH FOSSIL FUEL INDUSTRY MEMBER IN NEW YORK STATE SHALL  ESTABLISH
 AND  UTILIZE REASONABLE CONTROLS AND PROCEDURES TO PREVENT ITS QUALIFIED
 PRODUCTS FROM CREATING, MAINTAINING OR CONTRIBUTING, WHETHER DIRECTLY OR
 INDIRECTLY, TO A CONDITION IN NEW YORK STATE THAT ENDANGERS  THE  SAFETY
 OR HEALTH OF THE PUBLIC INCLUDING, BUT NOT LIMITED TO, CLIMATE CHANGE.
   §  328-B.  CLIMATE NEGLIGENCE. 1. A VIOLATION OF SECTION THREE HUNDRED
 TWENTY-EIGHT-A OF THIS ARTICLE IS HEREBY DECLARED TO BE A CLIMATE NEGLI-
 GENCE.
   2. ANY HARM CAUSED BY AN ACTION TAKEN BY A FOSSIL FUEL INDUSTRY MEMBER
 SHALL BE DEEMED CLIMATE NEGLIGENCE REGARDLESS  OF  WHEN  THE  UNDERLYING
 CONDUCT CREATING THE NUISANCE OCCURRED.
   §  328-C. GOVERNMENTAL ENFORCEMENT PROHIBITED. WHENEVER THERE SHALL BE
 A VIOLATION OF THIS ARTICLE, NO PERSON OR ENTITY ACTING ON BEHALF OF THE
 STATE OR ANY POLITICAL SUBDIVISION THEREOF MAY BRING, OR  INTERVENE  IN,
 AN  ACTION  IN  ANY COURT TO ENJOIN AND/OR RESTRAIN SUCH VIOLATION OR TO
 OBTAIN RESTITUTION OR DAMAGES UNDER THIS ARTICLE. THIS SECTION SHALL NOT
 PROHIBIT ANY PERSON OR ENTITY, INCLUDING A PERSON OR  ENTITY  ACTING  ON
 BEHALF  OF THE STATE OR ANY POLITICAL SUBDIVISION THEREOF, FROM BRINGING
 AN ACTION UNDER ANY OTHER PROVISION OF LAW NOR  SHALL  IT  PROHIBIT  ANY
 PERSON OR ENTITY ACTING ON BEHALF OF THE STATE OR ANY POLITICAL SUBDIVI-
 SION  THEREOF  FROM FILING AN AMICUS CURIAE BRIEF IN AN ACTION INVOLVING
 AN ALLEGED VIOLATION OF THIS ARTICLE.
   § 328-D. PRIVATE RIGHT OF ACTION. EXCEPT AS DESCRIBED IN SECTION THREE
 HUNDRED TWENTY-EIGHT-C OF THIS ARTICLE, ANY PERSON, FIRM, CORPORATION OR
 ASSOCIATION THAT HAS BEEN DAMAGED AS A RESULT OF A FOSSIL FUEL  INDUSTRY
 MEMBER'S  ACTS  OR OMISSIONS IN VIOLATION OF THIS ARTICLE SHALL BE ENTI-
 TLED TO BRING AN ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS ARTI-
 CLE IN:
   1. THE COUNTY IN WHICH ALL OR A SUBSTANTIAL  PART  OF  THE  EVENTS  OR
 OMISSIONS GIVING RISE TO THE CLAIM OCCURRED;
   2.  THE  COUNTY OF RESIDENCE FOR ANY ONE OF THE NATURAL PERSON DEFEND-
 ANTS AT THE TIME THE CAUSE OF ACTION ACCRUED;
   3. THE COUNTY OF THE PRINCIPAL OFFICE IN THIS STATE OF ANY ONE OF  THE
 DEFENDANTS THAT IS NOT A NATURAL PERSON; OR
   4.  THE  COUNTY  OF  RESIDENCE  FOR  THE CLAIMANT IF THE CLAIMANT IS A
 NATURAL PERSON RESIDING IN THIS STATE.
   § 3. Severability. If any clause,  sentence,  paragraph,  subdivision,
 section  or part of this act shall be adjudged by any court of competent
 jurisdiction to be invalid, such judgment shall not affect,  impair,  or
 invalidate the remainder thereof, but shall be confined in its operation
 to the clause, sentence, paragraph, subdivision, section or part thereof
 directly  involved  in the controversy in which such judgment shall have
 been rendered. It is hereby declared to be the intent of the legislature
 that this act would have been enacted even if  such  invalid  provisions
 had not been included herein.
   § 4. This act shall take effect immediately.