N.Y.
Environmental Conservation Law Section 76-0103
The climate change adaptation cost recovery program
1.
There is hereby established a climate change adaptation cost recovery program administered by the department.2.
The purposes of the program shall be the following:a.
To secure compensatory payments from responsible parties based on a standard of strict liability to provide a source of revenue for climate change adaptive infrastructure projects within the state.b.
To determine proportional liability of responsible parties pursuant to subdivision three of this section;c.
To impose cost recovery demands on responsible parties and issue notices of cost recovery demands;d.
To accept and collect payment from responsible parties;e.
To identify climate change adaptive infrastructure projects;f.
To disperse funds to climate change adaptive infrastructure projects; andg.
To allocate funds in such a way as to achieve a goal that at least forty percent of the qualified expenditures from the program, but not less than thirty-five percent of such expenditures, shall go to climate change adaptive infrastructure projects that benefit disadvantaged communities as defined in § 75-0101 (Definitions)section 75-0101 of this chapter.3.
a. A responsible party shall be strictly liable, without regard to fault, for a share of the costs of climate change adaptive infrastructure projects, including their operation and maintenance, supported by the fund.b.
With respect to each responsible party, the cost recovery demand shall be equal to an amount that bears the same ratio to seventy-five billion dollars as the responsible party’s applicable share of covered greenhouse gas emissions bears to the aggregate applicable shares of covered greenhouse gas emissions of all responsible parties.c.
The applicable share of covered greenhouse gas emissions taken into account under this section for any responsible party shall be the amount by which the covered greenhouse gas emissions attributable to such responsible party exceeds one billion metric tons.d.
Where an entity owns a minority interest in another entity of ten percent or more, the calculation of the entity’s applicable share of greenhouse gas emissions taken into account under this section shall include the applicable share of greenhouse gas emissions taken into account under this section by the entity in which the responsible party holds a minority interest, multiplied by the percentage of the minority interest held.e.
In determining the amount of greenhouse gas emissions attributable to any entity, an amount equivalent to nine hundred forty-two and one-half metric tons of carbon dioxide equivalent shall be treated as released for every million pounds of coal attributable to such entity; an amount equivalent to four hundred thirty-two thousand one hundred eighty metric tons of carbon dioxide equivalent shall be treated as released for every million barrels of crude oil attributable to such entity; and an amount equivalent to fifty-three thousand four hundred forty metric tons of carbon dioxide equivalent shall be treated as released for every million cubic feet of fuel gases attributable to such entity.f.
The commissioner may adjust the cost recovery demand amount of a responsible party refining petroleum products (or who is a successor in interest to such an entity) if such responsible party establishes to the satisfaction of the commissioner that a portion of the cost recovery demand amount was attributable to the refining of crude oil extracted by another responsible party (or who is a successor in interest to such an entity) that accounted for such crude oil in determining its cost recovery demand amount.g.
Payment of a cost recovery demand shall be made in full on the applicable payment date unless a responsible party elects to pay in installments pursuant to paragraph h of this subdivision.h.
A responsible party may elect to pay the cost recovery demand amount in twenty-four annual installments, eight percent of the total due in the first installment and four percent of the total due in each of the following twenty-three installments. If an election is made under this paragraph, the first installment shall be paid on the applicable payment date and each subsequent installment shall be paid on the same date as the applicable payment date in each succeeding year.i.
If there is any addition to the original amount of the cost recovery demand for failure to timely pay any installment required under this subdivision, a liquidation or sale of substantially all the assets of the responsible party (including in a proceeding under U.S. Code: Title 11 or similar case), a cessation of business by the responsible party, or any similar circumstance, then the unpaid balance of all remaining installments shall be due on the date of such event (or in the case of a proceeding under U.S. Code: Title 11 or similar case, on the day before the petition is filed). The preceding sentence shall not apply to the sale of substantially all of the assets of a responsible party to a buyer if such buyer enters into an agreement with the department under which such buyer is liable for the remaining installments due under this subdivision in the same manner as if such buyer were the responsible party.4.
a. Within one year of the effective date of this article, the department shall promulgate such regulations as are necessary to carry out this article, including but not limited to:i.
adopting methodologies using the best available science to determine responsible parties and their applicable share of covered greenhouse gas emissions consistent with the provisions of this article; ii. registering entities that are responsible parties under the program; iii. issuing notices of cost recovery demand to responsible parties informing them of the cost recovery demand amount; how and where cost recovery demands can be paid; the potential consequences of nonpayment and late payment; and information regarding their rights to contest an assessment; iv. accepting payments from, pursuing collection efforts against, and negotiating settlements with responsible parties; andv.
adopting procedures for identifying and selecting climate change adaptive infrastructure projects eligible to receive qualifying expenditures, including legislative budget appropriations, issuance of requests for proposals from localities and not-for-profit and community organizations, grants to private individuals, or other methods as determined by the department, and for dispersing moneys from the fund for qualifying expenditures. When considering projects intended to stabilize tidal shorelines, the department shall encourage the use of nature-based solutions. Total qualifying expenditures shall be allocated in such a way as to achieve a goal that at least forty percent of the qualified expenditures from the program, but not less than thirty-five percent of such expenditures, shall go to climate change adaptive infrastructure projects that benefit disadvantaged communities as defined in § 75-0101 (Definitions)section 75-0101 of this chapter.b.
The department shall hold at least two public hearings, one in-person and one virtual, on proposed regulations, with a minimum of thirty days’ public notice in compliance with the provisions of article seven of the public officers law.5.
Within two years of the effective date of this article, the department shall complete a statewide climate change adaptation master plan for the purpose of guiding the dispersal of funds in a timely, efficient, and equitable manner to all regions of the state in accordance with the provisions of this chapter. In completing such plan, the department shall:a.
collaborate with the department of state, empire state development, the department of agriculture and markets, the New York state energy research and development authority, the department of public service, and the New York independent systems operator;b.
assess the adaptation needs and vulnerabilities of various areas vital to the state’s economy, normal functioning, and the health and well-being of New Yorkers, including but not limited to: agriculture, biodiversity, ecosystem services, education, finance, healthcare, manufacturing, housing and real estate, retail, tourism (including state and municipal parks), transportation, and municipal and local government.c.
identify major potential, proposed, and ongoing climate change adaptive infrastructure projects throughout the state;d.
identify opportunities for alignment with existing federal, state, and local funding streams;e.
consult with stakeholders, including local governments, businesses, environmental advocates, relevant subject area experts, and representatives of disadvantaged communities; andf.
provide opportunities for public engagement in all regions of the state.6.
The department, the department of taxation and finance, and the attorney general are hereby authorized to implement and enforce the provisions of this article.7.
The department or the department of taxation and finance shall provide an opportunity to be heard to any responsible parties that seek to contest a cost recovery demand. Determinations made in favor of a petitioner after such hearing shall be final and conclusive. A determination in favor of the state may be appealed under article seventy-eight of the civil practice law and rules.8.
Moneys received from cost recovery demands shall be deposited in the climate change adaptation fund established pursuant to State Finance Law § 97-M (Climate change adaptation fund)section ninety-seven-m of the state finance law.9.
a. The department shall conduct an independent evaluation of the climate change adaptation cost recovery program. The purpose of this evaluation is to determine the effectiveness of the program in achieving its purposes as defined in subdivision two of this section.b.
Such evaluation shall be provided to the governor, the temporary president of the senate and the speaker of the assembly on or before January first of the second calendar year following the year in which this article is enacted into law, and annually on or before September thirtieth thereafter.c.
Any entity contracted by the department to conduct such evaluation shall receive prompt payment of all moneys due upon completion of such evaluation.
Source:
Section 76-0103 — The climate change adaptation cost recovery program, https://www.nysenate.gov/legislation/laws/ENV/76-0103 (updated Jan. 3, 2025; accessed Jan. 18, 2025).
