By Daniel T. McKillop, Scarinci Hollenbeck
On December 26, 2024, New York Governor Kathy Hochul signed into law the “Climate Change Superfund Act,” which seeks “to establish a climate change adaptation cost recovery program that will require companies that have contributed significantly to the buildup of climate change-driving greenhouse gases in the atmosphere to bear a proportionate share of the cost of infrastructure investments and other expenses necessary for comprehensive adaptation to the impacts of climate change in New York state.” New Jersey has introduced similar legislation known as the “Climate Superfund Act.”
These new environmental laws may be even more significant in the wake of the U.S. Supreme Court’s decision to allow a Hawaii state case seeking billions of dollars from fossil fuel producers to move forward. The Court recently denied certiorari, thereby clearing the way for the case to continue in Hawaii state court and potentially indicating the justices’ intent to allow state-law climate change cases to proceed.
New York’s Climate Change Superfund Act
New York’s Climate Change Superfund Act (Act) is now law. The Act, which is modeled after federal Superfund laws, seeks to transfer the costs of addressing climate change from local governments and taxpayers to fossil fuel companies that have contributed most significantly to the buildup of greenhouse gases. As stated by the New York Legislature, its intent is to hold “companies that have contributed significantly to the buildup of climate change-driving greenhouse gases in the atmosphere to bear a proportionate share of the cost of infrastructure investments and other expenses necessary for comprehensive adaptation to the impacts of climate change in New York state.”
Under New York’s Climate Change Superfund Act, strict liability is imposed on “responsible parties,” which are defined as those entities, including successors, that the New York State Department of Environmental Conservation (NYSDEC) determines to be responsible for more than one billion tons of greenhouse gas emissions during any part of the period from Jan. 1, 2000, to Dec. 31, 2018. Responsible parties will collectively be required to pay $75 billion ($3 billion annually) spread out over 25 years. Each party’s liability is proportionate to its share of the aggregate covered greenhouse gas emissions.
The NYSDEC is tasked with adopting implementing regulations to carry out the law, including the identification of responsible parties, the procedures for issuing notices of cost recovery demands and collecting payment on those demands, and procedures for identifying projects that would qualify as climate change adaptive infrastructure projects The agency must also adopt 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.”
New Jersey’s Proposed Climate Superfund Act
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