S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    899
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2023
                                ___________
 
 Introduced  by  Sens.  BRISPORT, ADDABBO, BAILEY, BROUK, CLEARE, COMRIE,
   COONEY, GIANARIS, HARCKHAM, HINCHEY, HOYLMAN, JACKSON,  KRUEGER,  MAY,
   MAYER,  MYRIE,  PARKER,  RAMOS,  RIVERA,  SALAZAR, SANDERS, SEPULVEDA,
   SERRANO, SKOUFIS -- read twice and ordered printed, and  when  printed
   to be committed to the Committee on Civil Service and Pensions

 AN ACT to amend the education law, in relation to requiring the New York
   state  teachers'  retirement system to divest the retirement system of
   any investments in corporations or companies included on an  exclusion
   list of coal producers and oil and gas producers
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as the  "teachers'
 fossil fuel divestment act".
   §  2. Legislative findings. 1. a. Climate change is a real and serious
 threat to the health, welfare, and prosperity of all  New  Yorkers,  now
 and  in  the  future.  Maintaining  the status quo of fossil fuel energy
 production will lead to catastrophic results.
   b. In July 2019, New York state  passed  the  climate  leadership  and
 community  protection act and committed to reducing statewide greenhouse
 gas emissions by eighty-five percent by 2050 and net zero  emissions  in
 all  sectors  of  the  economy.  Other  cities and states have chosen to
 pursue similar paths to reduce greenhouse gas emissions.
   c. The threat of climate change, and the transformation of the  global
 energy system that will be necessary to mitigate it, will have a serious
 negative  impact on investors whose assets are not aligned with the goal
 of keeping the global average temperature  increase  below  1.5  degrees
 Celsius,  as determined by the United Nations Intergovernmental Panel on
 Climate Change.
   d. There are no existing legal or fiduciary duties  that  require  New
 York  state's pension funds to invest in energy sources that are harmful
 to the environment, or in contradiction to  the  goals  of  the  climate

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03486-01-3
              

 S. 899                              2
 
 leadership  and  community protection act. Rather, there are alternative
 investments that are available to our pension funds that do not  present
 such harms.
   e.  Many  cities  and  states  have  recognized the harmful effects of
 pension and investment funds investing in fossil fuels and have  commit-
 ted to divesting those funds. Over 1,100 institutional investors repres-
 enting  more than $11 trillion in holdings have chosen to pursue full or
 partial divestment from fossil fuel producers, including  the  New  York
 city employees retirement system, the endowment and pension funds of the
 University  of  California  system,  and  the  sovereign wealth funds of
 Norway and Ireland.
   2. a. Continued investment in fossil fuel producers poses unacceptable
 risks to the people of the state of New York, as well as  the  long-term
 sustainability of the New York state teachers' retirement system.
   b. Investment in dangerous and harmful fossil fuels is not mandated by
 law.  The  New  York  state  common retirement fund, consistent with its
 fiduciary duties, has committed to complete reviews of all  fossil  fuel
 investments by 2025 and to divest from companies that fail to meet mini-
 mum  standards.  It  has also set a precedent by choosing to divest from
 certain industries in the past due to the moral  implications  of  their
 business  models, including private prisons, firearms manufacturers, and
 companies doing business with Sudan, all while complying with the  comp-
 troller's fiduciary obligations.
   c.  New  York  owes  duties  to  its residents, and the New York state
 teachers' retirement system owes duties to future  beneficiaries.  These
 duties  can and should reasonably include considerations of human inter-
 ests, quality of  life,  public  safety  and  security,  and  ultimately
 require  a  shift  away  from  fossil  fuels to help mitigate the future
 adverse effects of climate change.
   d. According to the U.S. Department of Labor's  interpretive  bulletin
 2015-1,  environmental  issues  "may  have  a direct relationship to the
 economic value of the plan's investment, and are not  merely  collateral
 considerations  or tie-breakers, but rather are proper components of the
 fiduciary's primary analysis of the economic merits of competing invest-
 ment choices."
   e. Attempting to profit from investments in companies  whose  business
 models,  public  relations campaigns, and lobbying efforts not only fail
 to comply with New York's statutory climate  goals,  but  also  put  the
 stability  of  our  society  and  the safety of our citizens at risk, is
 neither morally acceptable nor  in  compliance  with  the  legislature's
 responsibility  to  protect the financial security of current and future
 pension beneficiaries.
   f. Currently, the majority of fossil fuel producers are not  adjusting
 their  business  models to take into account the changing energy market,
 investing billions of dollars in exploring and extracting new  reserves,
 creating  stranded  asset  risk and the potential for rapid, unexpected,
 and significant loss of value.
   g. Attempting to beat the market by holding  these  investments  until
 the  last  possible  moment is a high-risk strategy that could result in
 the loss of investment principal. In the words  of  the  decarbonization
 advisory panel for the New York state common retirement fund, "being too
 early  in  the avoidance of the risk of permanent loss is much less of a
 danger than being too late."
   h. In addition to the risks regarding retirement  security,  continued
 investment in the fossil fuel industry is counterproductive to the goals
 set forth in the climate leadership and community protection act.
 S. 899                              3
 
   §  3.  The  education  law is amended by adding a new section 508-b to
 read as follows:
   §  508-B.  FOSSIL  FUEL  DIVESTMENT.  1.  DEFINITIONS. AS USED IN THIS
 SECTION:
   A. "COAL PRODUCER" MEANS ANY CORPORATION OR COMPANY, OR ANY SUBSIDIARY
 OR PARENT OF ANY CORPORATION OR COMPANY OR PARTNERSHIP  OR  OTHER  LEGAL
 ENTITY, THAT DERIVES AT LEAST TEN PERCENT OF ANNUAL REVENUE FROM THERMAL
 COAL  PRODUCTION,  OR  ACCOUNTS  FOR  MORE  THAN  ONE  PERCENT OF GLOBAL
 PRODUCTION OF THERMAL COAL, OR WHOSE REPORTED COAL RESERVES CONTAIN MORE
 THAN 0.3 GIGATONS OF POTENTIAL CARBON DIOXIDE EMISSIONS;
   B. "EXCLUSION LIST" MEANS THE LIST CREATED PURSUANT TO PARAGRAPH A  OF
 SUBDIVISION TWO OF THIS SECTION;
   C.  "OIL  AND  GAS  PRODUCER" MEANS ANY CORPORATION OR COMPANY, OR ANY
 SUBSIDIARY OR PARENT OF ANY CORPORATION OR  COMPANY  OR  PARTNERSHIP  OR
 OTHER  LEGAL  ENTITY,  THAT  DERIVES  AT  LEAST TWENTY PERCENT OF ANNUAL
 REVENUE FROM OIL OR GAS  PRODUCTION,  OR  ACCOUNTS  FOR  MORE  THAN  ONE
 PERCENT  OF GLOBAL OIL OR GAS PRODUCTION, OR WHOSE REPORTED COMBINED OIL
 AND GAS RESERVES CONTAIN MORE THAN  0.1  GIGATONS  OF  POTENTIAL  CARBON
 DIOXIDE EMISSIONS;
   D.  "OIL  OR  GAS PRODUCTION" MEANS EXPLORATION, EXTRACTION, DRILLING,
 PRODUCTION, REFINING, PROCESSING, OR DISTRIBUTION ACTIVITIES RELATED  TO
 OIL OR GAS;
   E.  "THERMAL  COAL PRODUCTION" MEANS MINING, TRANSPORT, PROCESSING, OR
 EXPLORATION ACTIVITIES RELATED TO THERMAL COAL;
   F. "OIL AND GAS EQUIPMENT, SERVICES, TRANSPORTATION AND STORAGE" MEANS
 SERVICES, TRANSPORTATION OR STORAGE ACTIVITIES RELATED TO OIL  AND  GAS;
 AND
   G.  "INDEX  FUND"  MEANS  A  PASSIVE INVESTMENT STRATEGY THAT TRACKS A
 MARKET INDEX.
   2. FOSSIL FUEL COMPANY EXCLUSION LIST. A. WITHIN  SIX  MONTHS  OF  THE
 EFFECTIVE  DATE  OF  THIS  SECTION, THE RETIREMENT BOARD SHALL CREATE AN
 EXCLUSION LIST OF ALL COAL PRODUCERS AND OIL AND GAS PRODUCERS IN  WHOSE
 STOCKS, SECURITIES, EQUITIES, FIXED INCOME, ASSETS, OR OTHER OBLIGATIONS
 THE RETIREMENT SYSTEM HAS ANY MONIES OR ASSETS DIRECTLY INVESTED.
   B.  UPON  COMPLETION  OF THE EXCLUSION LIST, IT SHALL BE MADE PUBLICLY
 AVAILABLE AND A COPY SHALL BE SENT TO THE  TEMPORARY  PRESIDENT  OF  THE
 SENATE AND THE SPEAKER OF THE ASSEMBLY.
   C.  THE  RETIREMENT BOARD SHALL SUBMIT NOTIFICATION TO ANY CORPORATION
 OR COMPANY THAT HAS BEEN INCLUDED IN THE EXCLUSION LIST  INFORMING  THEM
 OF  THEIR  INCLUSION  ON  SUCH LIST, AS WELL AS THE REQUIREMENTS OF THIS
 SECTION.
   D. AT THE RETIREMENT BOARD'S DISCRETION, BUT NO LATER THAN  TWO  YEARS
 AFTER  THE COMPLETION OF THE EXCLUSION LIST, AND NO LESS FREQUENTLY THAN
 BIENNIALLY THEREAFTER, THE RETIREMENT BOARD SHALL UPDATE  THE  EXCLUSION
 LIST  TO  REMOVE  ANY  CORPORATION  OR  COMPANY THAT IS NO LONGER A COAL
 PRODUCER OR AN OIL AND GAS PRODUCER AND ADD ANY CORPORATION  OR  COMPANY
 NECESSARY TO COMPLY WITH PARAGRAPH A OF THIS SUBDIVISION.
   3.  REMOVAL  FROM  THE  EXCLUSION  LIST.  A. AT ANY TIME FOLLOWING THE
 PUBLICATION OF THE EXCLUSION LIST, ANY CORPORATION OR  COMPANY  INCLUDED
 IN  THE LIST MAY SUBMIT TO THE RETIREMENT BOARD A REQUEST FOR REMOVAL ON
 THE BASIS OF CLEAR AND CONVINCING EVIDENCE THAT THEY ARE NOT CURRENTLY A
 COAL PRODUCER OR AN OIL AND GAS PRODUCER AS DEFINED IN  SUBDIVISION  ONE
 OF THIS SECTION.
   B.  UPON  SATISFACTION  THAT  A  CORPORATION  OR  COMPANY  HAS MET THE
 REQUIREMENTS OF PARAGRAPH A OF THIS SUBDIVISION,  THE  RETIREMENT  BOARD
 SHALL  REMOVE  SUCH  CORPORATION  OR COMPANY FROM THE EXCLUSION LIST AND
 S. 899                              4
 
 PROVIDE A WRITTEN EXPLANATION FOR SUCH REMOVAL TO THE  TEMPORARY  PRESI-
 DENT OF THE SENATE AND THE SPEAKER OF THE ASSEMBLY.
   4.  COMPLIANCE WITH FIDUCIARY DUTIES. A. NOTHING IN THIS SECTION SHALL
 REQUIRE A BOARD TO TAKE ACTION AS DESCRIBED IN THIS SECTION  UNLESS  THE
 BOARD DETERMINES IN GOOD FAITH THAT THE ACTION DESCRIBED IN THIS SECTION
 IS CONSISTENT WITH THE FIDUCIARY RESPONSIBILITIES OF THE BOARD UNDER THE
 NEW  YORK  STATE  CONSTITUTION. ANY NEW INVESTMENTS MUST COMPLY WITH THE
 FIDUCIARY OBLIGATIONS AND  THE  PRUDENT  INVESTOR  RULE  AS  DEFINED  BY
 SECTION 11-2.3 OF THE ESTATES, POWERS AND TRUSTS LAW.
   B.  NO  PRIVATE RIGHT OF ACTION SHALL BE AVAILABLE AGAINST THE RETIRE-
 MENT SYSTEM, ANY OF ITS EMPLOYEES, OR ANY PRESENT,  FUTURE,  AND  FORMER
 BOARD  MEMBER  OF  THE RETIREMENT SYSTEM FOR DIVESTING RETIREMENT SYSTEM
 ASSETS PURSUANT TO THIS SECTION IN GOOD FAITH.
   C. NO PRIVATE RIGHT OF ACTION SHALL BE  AVAILABLE  AGAINST  THE  STATE
 PURSUANT TO THIS SECTION.
   5. DIVESTMENT. A. COMMENCING ONE YEAR AFTER THE EFFECTIVE DATE OF THIS
 SECTION, AND IN ACCORDANCE WITH SOUND INVESTMENT CRITERIA AND CONSISTENT
 WITH  ITS FIDUCIARY OBLIGATIONS, THE RETIREMENT BOARD AND ANY INVESTMENT
 MANAGERS UNDER CONTRACT WITH THE RETIREMENT SYSTEM SHALL: (I) DIVEST THE
 RETIREMENT SYSTEM OF ANY STOCKS, SECURITIES, EQUITIES, ASSETS, OR  OTHER
 OBLIGATIONS  OF CORPORATIONS OR COMPANIES ON THE EXCLUSION LIST IN WHICH
 ANY MONIES OR ASSETS OF THE RETIREMENT SYSTEM  ARE  INVESTED;  AND  (II)
 CEASE  NEW  INVESTMENTS OF ANY MONIES OR ASSETS OF THE RETIREMENT SYSTEM
 IN ANY STOCKS, SECURITIES, OR OTHER OBLIGATIONS OF  ANY  CORPORATION  OR
 COMPANY THAT IS A COAL PRODUCER OR OIL AND GAS PRODUCER AS DEFINED HERE-
 IN.
   B.  DIVESTMENT FROM OIL AND GAS PRODUCERS PURSUANT TO THIS SUBDIVISION
 SHALL BE COMPLETED NO LATER THAN TWO YEARS FROM THE  EFFECTIVE  DATE  OF
 THIS  SECTION.  DIVESTMENT  FROM  OIL  AND GAS PRODUCERS RETURNED TO THE
 EXCLUSION LIST PURSUANT TO PARAGRAPH  C  OF  SUBDIVISION  FOUR  OF  THIS
 SECTION  SHALL  BE  COMPLETED  NO  LATER THAN TWO YEARS FROM THE DATE OF
 RETURN TO THE EXCLUSION LIST.
   C. DIVESTMENT FROM COAL PRODUCERS PURSUANT TO THIS  SUBDIVISION  SHALL
 BE  COMPLETED  NO  LATER  THAN  ONE YEAR FROM THE EFFECTIVE DATE OF THIS
 SECTION.  DIVESTMENT FROM COAL PRODUCERS RETURNED TO THE EXCLUSION  LIST
 PURSUANT  TO  PARAGRAPH  C  OF  SUBDIVISION TWO OF THIS SECTION SHALL BE
 COMPLETED NO LATER THAN ONE YEAR FROM THE DATE OF RETURN TO  THE  EXCLU-
 SION LIST.
   D.  DIVESTMENT FROM PRIVATE EQUITY AND PRIVATE DEBT INVESTMENTS PURSU-
 ANT TO THIS SUBDIVISION  SHALL  OCCUR  EXPEDITIOUSLY  IN  A  GOOD  FAITH
 ATTEMPT  TO  COMPLY  WITH  THE  PROVISIONS OF PARAGRAPHS B AND C OF THIS
 SUBDIVISION, BUT NO LATER THAN FIVE YEARS FROM  THE  EFFECTIVE  DATE  OF
 THIS SECTION.
   E.  THE RETIREMENT SYSTEM SHALL HAVE THE DISCRETION TO DIVEST FROM ANY
 OTHER ENTITIES THAT IT IN GOOD FAITH BELIEVES ARE DIRECTLY OR INDIRECTLY
 FINANCING OIL AND GAS PRODUCERS, OR COAL PRODUCERS, REGARDLESS OF WHETH-
 ER SUCH ENTITY OTHERWISE MEETS THE CRITERIA OF THIS SUBDIVISION.
   6. LIMITATIONS ON INDIRECT INVESTMENT. NOTWITHSTANDING ANY  PROVISIONS
 IN THIS SECTION TO THE CONTRARY, AND IN ACCORDANCE WITH SOUND INVESTMENT
 CRITERIA  AND  CONSISTENT WITH ITS FIDUCIARY OBLIGATIONS, THE RETIREMENT
 BOARD SHALL BE PERMITTED TO INVEST IN INDEX FUNDS IF THE BOARD IS SATIS-
 FIED ON REASONABLE GROUNDS AND IN GOOD FAITH THAT SUCH INDIRECT  INVEST-
 MENT VEHICLE DOES NOT HAVE IN EXCESS OF ONE PERCENT OF ITS ASSETS, AVER-
 AGED ANNUALLY, DIRECTLY OR INDIRECTLY INVESTED IN COAL PRODUCERS AND OIL
 AND GAS PRODUCERS.
 S. 899                              5
 
   7.  REPORTING. A. COMMENCING ONE YEAR AFTER THE EFFECTIVE DATE OF THIS
 SECTION AND ANNUALLY THEREAFTER  THE  RETIREMENT  BOARD  SHALL  ISSUE  A
 REPORT  TO  THE TEMPORARY PRESIDENT OF THE SENATE AND THE SPEAKER OF THE
 ASSEMBLY AND SHALL MAKE SUCH REPORT PUBLICLY  AVAILABLE,  OUTLINING  ALL
 ACTIONS TAKEN TO COMPLY WITH THIS SECTION.
   B.  TO  THE  EXTENT  THAT  THE RETIREMENT SYSTEM HAS REMAINING PRIVATE
 EQUITY OR PRIVATE DEBT INVESTMENTS IN ANY OIL AND GAS PRODUCERS, OR COAL
 PRODUCERS, THE RETIREMENT BOARD SHALL  PROMINENTLY  MAKE  NOTE  OF  SUCH
 INVESTMENTS  AND  ALL  ATTEMPTS  THAT  HAVE  BEEN  MADE TO EXPEDITIOUSLY
 COMPLETE ITS DIVESTMENT OBLIGATIONS TO DATE.   THE BOARD  SHALL  PROVIDE
 PUBLIC  NOTICE  OF  THIS  ANNUAL  REPORT  AND  AN OPPORTUNITY FOR PUBLIC
 COMMENT ON THE RETIREMENT SYSTEM'S DIVESTMENTS PURSUANT TO THIS  ACT  OF
 AT LEAST SIXTY DAYS.
   § 4. This act shall take effect immediately.